OH9: Permission to enter after the fact did not make defendant a social guest with a reasonable expectation or privacy

Defendant and two others were found to have no reasonable expectation of privacy in a friend’s house where they were seen entering the apartment, and others called police and the friend. The police entered and found the defendant flushing cocaine down the toilet. At best, the court found that the friend only was granting permission for him to enter after the fact. The police were investigating an illegal entry. State v. Chapman, 2009 Ohio 5757, 2009 Ohio App. LEXIS 4845 (9th Dist. November 2, 2009):

[*P13] Even if this Court were to conclude that the protection of the Fourth Amendment extends to all social guests, Mr. Chapman did not establish that he was a social guest. According to Justice Ginsburg, a guest may “share his host’s shelter against unreasonable searches and seizures” if the “homeowner or lessee personally invites [him] into her home to share in a common endeavor ….” Minnesota v. Carter, 525 U.S. 83, 106 (1998) (Ginsburg, J., dissenting). It is “[t]hrough the host’s invitation [that] the guest gains a reasonable expectation of privacy in the home.” Id. at 108 (Ginsburg, J., dissenting). Similarly, this Court has held in the context of premises liability that “[a] social guest is a person who comes onto the premises, pursuant to an invitation, presumably giving the possessor some personal benefit, intangible though it may be.” White v. Brinegar, 9th Dist. No. 16429, 1994 WL 232692 at *2 (June 1, 1994).

[*P14] In this case, there was no evidence that the tenant invited Mr. Chapman to her apartment. To the contrary, the testimony established that she did not know Mr. Chapman was in her home until a police officer asked her if he was allowed to be there. Although the tenant said Mr. Chapman had permission to be in her house, her “after the fact” acquiescence does not amount to an invitation as contemplated by the United States Supreme Court. Mr. Chapman, therefore, failed to establish that he had a legitimate expectation of privacy in the apartment under the Fourth Amendment of the United States Constitution.

“[W]here the warrant was executed at a one-bedroom residence in the middle of the afternoon, and in connection with a murder investigation, and when the officers had reason to believe that a suspect was inside the residence with access to a firearm, we are satisfied that it was not unreasonable for the officers to infer constructive refusal after they announced their presence and received no response within fifteen seconds.” Atchison v. United States, 2009 D.C. App. LEXIS 543 (October 29, 2009).

Defendant was arrested for obstructing a police officer, and a search incident of his car was unjustified. Gant was decided while the case was on appeal, and the state conceded it governed the search. People v. Bridgewater, 235 Ill. 2d 85, 918 N.E.2d 553, 335 Ill. Dec. 208 (2009):

Here, defendant was handcuffed and inside Officer Morrow’s squad car when the vehicle search took place. This is not the “rare case” where an officer could not prevent the arrestee’s access by handcuffing and securing him away from the vehicle. Further, defendant was arrested for obstructing a peace officer after exiting his vehicle and walking into the store. The offense was based entirely on defendant’s failure to obey Officer Morrow’s commands. The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant’s vehicle.