CA1: No REP in ex-lover’s apartment after being kicked out; his entry made him a trespasser

Defendant had no reasonable expectation of privacy in his ex-lover’s apartment after she kicked him out. When he came back, he was a trespasser. United States v. Battle, 637 F.3d 44 (1st Cir. 2011):

Here, although Battle may have exhibited a subjective expectation of privacy in Fonseca’s apartment, that expectation was objectively unreasonable because Battle did not have permission to be present. The district court found that on August 21, 2004, after the armed encounter with Rosa, Fonseca told Battle to leave her apartment and not come back. On September 2, 2004, when Battle called Fonseca and told her that the police were in her apartment, she asked Battle what he was doing at her house since he did not have permission to be there. On the day of the search, Battle was no longer a welcomed guest in Fonseca’s apartment, but instead was a trespasser who stayed beyond his permitted visit. As such, he no longer had a legally sufficient interest in the apartment to mount a Fourth Amendment challenge.

911 report of a man carrying a handgun in Texas was not sufficient for reasonable suspicion without more. Here, the officer encountered the man and saw nothing that corroborated the informant because the man was carrying only a white water bottle. When the officer saw the defendant, he ordered the defendant to the ground. United States v. Wali, 811 F. Supp. 2d 1276 (N.D. Tex. 2011)*:

Before delving into its analysis, the court believes that it must first draw a distinction between reported activity that is per se illegal and reported activity that is potentially illegal. Reported activity that is per se illegal contemplates reported conduct that is, by itself, absolutely against the law, such as the possession of narcotics. See United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993). Reported activity that is potentially illegal contemplates reported conduct that is against the law only if one or more additional elements are also present. See id. In the latter instance, when there is no indication that those other necessary elements are present, there cannot be reasonable suspicion of criminal activity arising out of the potentially illegal conduct. See id. Accordingly, the 911-caller’s complaint described activity that was potentially illegal instead of per se illegal. The court therefore determines that the 911-caller’s complaint, without more than just the bare bones assertion that the person was carrying a handgun, did not constitute a report of criminal activity. See id. Unless the tip was accompanied by sufficient indicia of reliability, further investigation was required before a forcible stop of the suspect could be authorized. Adams, 407 U.S. at 147.