CA9: Entry in violation of an order of protection denies def standing

A person on premises in violation of an order of protection, even with an invitation, has no standing to challenge police action there. As long ago as 1979, the Ninth Circuit held it was frivolous for a trespasser to argue he had standing in the place he was trespassing. He also relies on Byrd, but even it says wrongful presence is no standing. United States v. Schram, 2018 U.S. App. LEXIS 23314 (9th Cir. Aug. 21, 2018):

The Third Circuit addressed the question directly before us and relied on these cases to conclude that, “like a trespasser, a squatter, or any individual who occup[ies] a piece of property unlawfully,” an individual whose presence in a home is barred by a court no-contact order lacks “any expectation of privacy” in such place “that society is prepared to recognize as reasonable.” United States v. Cortez-Dutrieville, 743 F.3d 881, 884-85 (3rd Cir. 2014) (alteration in original) (footnotes and citations omitted). In so holding, the Third Circuit rejected the defendant’s contention that the no-contact order was vitiated by the consent of the person whom the order barred the defendant from contacting. Id. at 884.

Like the defendant in Cortez-Dutrieville, Schram argues that Satterfield’s consent to his presence overrode the terms of the no-contact order. He relies on United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000), to argue that a property owner’s invitation grants an individual a legitimate expectation of privacy on a premises, even if the individual is there for illegal purposes. This principle sweeps far broader than the holding of Gamez-Orduno. In that case, we held that narcotics smugglers had a legitimate expectation of privacy as overnight guests in a home. Id. at 458-59. But the narcotics smugglers’ criminal conduct was not the act of being on the premises in question: their criminal conduct was narcotics smuggling. Thus while a defendant does not lose his Fourth Amendment rights simply by engaging in illegal acts, a defendant still may lack Fourth Amendment rights to challenge the search of a residence when the law prevents him from being there in the first place. See United States v. Vega, 221 F.3d 789, 797 (5th Cir. 2000) (“[T]he burglar’s expectation of privacy loses its legitimacy not because of the wrongfulness of his activity, but because of the wrongfulness of his presence in the place where he purports to have an expectation of privacy.”), abrogated on other grounds, as recognized by United States v. Aguirre, 664 F.3d 606, 611 n.13 (5th Cir. 2011).

Schram also argues that the Supreme Court’s recent holding in Byrd cautions against drawing a per se rule in this case. In Byrd, the Court held that a defendant who had not signed a rental car agreement may still have a legitimate privacy expectation in the rental car to challenge its search. 138 S. Ct. at 1529-30. But in so holding, the Court explicitly left intact its conclusion from Rakas that a “car thief would not have a reasonable expectation of privacy in a stolen car,” “[n]o matter the degree of possession and control.” Id. at 1529 (citing Rakas, 439 U.S. at 141 n.9). To explain the difference between the defendant in Byrd and a car thief, the Court likened a car thief to Rakas’s hypothetical “burglar plying his trade in a summer cabin during the off season,” thus reaffirming Rakas’s teaching that, like a defendant who may not challenge a search of stolen property, a defendant whose presence on a premises violates the law may not “object to the legality of [the premises’] search.” Id. (quoting Rakas, 439 U.S. at 141 n.9).