E.D.Cal.: Def had acceded to eviction in NYC civil court so he lost his REP in his apartment

By the time the search occurred here, the defendant had, without doubt, been civilly evicted in NYC, and he even stipulated to loss of the apartment in Civil Court proceedings before the search occurred. Whether there was a notice placed on the door on the day of the search didn’t even matter. United States v. Almashwali, 2017 U.S. Dist. LEXIS 36423 (E.D. Cal. March 14, 2017):

Here, the government has presented documentary evidence establishing that defendant Almashwali had been evicted from his apartment and that on August 2, 2016, when federal agents conducted the search, control of the apartment had reverted to the landlord. In this regard, records of the Civil Court of New York City, County of Kings reflect the following. Eviction proceedings were initiated against defendant by MA Real Estate Holdings, LLC on January 22, 2016. (Doc. Nos. 61-3 at 1; 77 at 1.) It appears that judgment in favor of the landlord was initially entered on February 16, 2016, but was stayed by stipulation of the parties that same day. (Id.) After additional court proceedings, on June 30, 2016, defendant Almashwali submitted his own affidavit to the state court attesting that on May 10, 2016, he had appeared in court and had entered “into a stipulation of settlement whereby I consented to vacate the subject premises by June 30, 2016.” (Doc. No. 61-4 at 4.) In his June 30 affidavit, defendant acknowledged that the deadline for him to vacate the apartment was about to expire and that he was subject to eviction at any time, but sought an approximately thirty day extension of time in which to vacate. (Id. at 4-5.) In response to defendant’s affidavit, the court put the matter on calendar for hearing on July 18, 2016 at 9:30 a.m. as to his request for a stay of execution of the warrant of eviction and an additional extension of time in which to vacate the apartment. (Id. at 2.) However, on July 18, 2016, following the hearing, defendant’s motion for a further stay and extension of time was denied. (Doc. Nos. 61-5; 77.) Finally, a Notice of Marshal’s Legal Possession was issued in the Civil Court of New York City, County of Kings eviction proceeding against defendant Almashwali specifically stating that “The Landlord has legal possession of these premises as of: Tuesday, August 2, 2016.” (Doc. No. 61-6 at 2.) That notice was also signed by the Marshal, City of New York. (Id.)

Defendant contests whether this notice was posted on the apartment door at the time of the agents’ search and asserts that an evidentiary hearing should be held in order to make a determination in that regard. The court finds the argument to be unpersuasive. Whether the notice was physically posted on the apartment door at the time of the search need not be determined in light of the evidence before the court establishing that at the time of the search the apartment was legally in the possession of the landlord and not defendant Almashwali. (See Doc. No. 61-6 at 2.) Moreover, the evidence before the court establishes that defendant Almashwali: was well-aware of the eviction proceedings, having personally participated in them; acknowledged that his extension of time to vacate the apartment had expired on June 30, 2016; and had not paid rent on the apartment in over eight months. (Doc. Nos. 61-3, 61-4, 61-5, 77.) In light of this evidence of eviction, defendant Almashwali cannot be said to have had a reasonable expectation of privacy in the Brooklyn apartment on August 2, 2016 or thereafter. See Curlin, 638 F.3d at 565; Tealer, 2016 U.S. Dist. LEXIS 138324, 2016 WL 5816915, at *2; see also Cunag, 386 F.3d at 895; Dorais, 241 F.3d at 1127-28; Haddad, 558 F.2d at 975.