OH6: When the contents of a storage unit are sold at auction for nonpayment of rent, the defendant loses standing

When the contents of a storage unit are sold at auction for nonpayment of rent, the defendant loses his reasonable expectation of privacy in the unit. State v. Coopman, 2015-Ohio-457, 2015 Ohio App. LEXIS 414 (6th Dist. February 6, 2015):

[*18] The state argues that any reasonable expectation of privacy was lost once the public auction began and the auctioneer removed appellee’s lock from the storage unit and opened the unit to public view for auction and upon sale of the storage unit contents to Carr.

[*19] The state cited United States v. Lnu, 544 F.3d 361 (1st Cir.2008); United States v. Melucci, 888 F.2d 200 (1st Cir.1989); United State v. Reyes, 908 F.2d 282 (8th Cir.1990); and United States v. Abiodun, S.D.N.Y. No. 04 CR. 1316(DC), 2005 WL 3117305 (Nov. 22, 2005), in support of its argument. In Lnu, the U.S. Court of Appeals for the First Circuit held that a defendant did not have a reasonable expectation of privacy in a storage locker. The court considered that the defendant had failed to pay rent for several months, that by statute a storage facility operator was permitted to impose a lien on contents of a storage space where the lessee defaults on rent, and that by state statute and under the rental agreement the storage facility operator was permitted to deny the lessee access to leased space where the occupant is in default for a period of five or more days. Lnu at 366. The court held “In light of the limitations on the defendant’s right to control access to the storage locker, it is clear that defendant’s reasonable expectation of privacy did not continue up until the time (sic) the lien sale.” Id. at 367.

[*20] In Merlucci, the court held that a defendant did not have a reasonable expectation of privacy in his rented storage unit and lacked standing to challenge the police search. Merlucci at 202. The court reasoned that the defendant’s failure to pay rent “coupled with *** [the owner of the storage facility’s] *** taking possession of the unit pursuant to the lease contract by removing the lock, indicates that *** [the defendant’s] *** possession and control over the unit had terminated by the time of the search.” Id. In Reyes, the court ruled that the defendant lacked a reasonable expectation of privacy in a storage unit after the rental period expired. Reyes at 285.

[*21] In Abiodun, the U.S. District Court for the Southern District of New York considered whether a reasonable expectation of privacy existed after the owner of the storage facility scheduled a public auction and placed an overlock that denied the defendant access to his storage unit. The defendant had failed to pay rent on the storage unit for three to four months. The owner of the storage facility consented to a search of the storage unit.

[*22] The court ruled in Abiodun that the defendant no longer had a reasonable expectation of privacy in the storage unit at the time of the search. Id. at *3-4. The court ruled that even if the storage manager lacked authority to consent to the search, the federal agents who conducted the search had a reasonable basis for believing that he had such authority. Id. at *5.

[*23] Appellee argues that these federal decisions can be distinguished because each had evidence that the defendant had failed to pay rent and included evidence of the applicable rental agreement. Appellee argues that there is no evidence in this case that appellee failed to pay rent and the rental agreement for the storage locker is not in evidence. Appellee also argues further that evidence in the record is lacking as to whether the owner provided required notice under R.C. 5322.02 and 5322.03.

[*24] We have reviewed the record. The rental agreement is not in evidence. Evidence is lacking on whether appellee had failed to make rental payments. Evidence is lacking in the record as to whether the owner of the storage facility followed R.C. 5322.03 notice procedures to enforce its lien. However, the record also contains no evidence upon which to challenge the validity of the auction and purchase.

[*25] The burden is on the defendant to prove facts sufficient to establish a reasonable expectation of privacy in the invaded place in order to challenge the constitutionality of a search. Rakas, 439 U.S. at 132, fn. 1, 99 S.Ct. 421, 58 L.Ed.2d 387; Williams, 73 Ohio St.3d at 166, 652 N.E.2d 721. The uncontested evidence on the motion to suppress is that the contents of appellee’s storage unit, including the lockbox and its contents, were sold at public auction pursuant to R.C. 5322.02(A) and 5233.03. The purchaser at auction took possession of the property, placing his own lock on the storage unit, prior to the claimed unconstitutional search.