United States District Court, D. Montana, Billings Division
ORDER AND OPINION
SUSAN P. WATTERS, District Judge.
Defendant Lorinda Jane Brown is charged with possession of stolen firearms. She has moved to suppress the evidence that forms the basis of Count II of the Indictment. (Doc. 41). The Court held evidentiary hearings on Brown's motion on April 22, 2015, and May 15, 2015. The Court heard from Montana State Adult Probation and Parole Officers Steve Peek and John Frost, and Task Force Officer Steve Feuerstein. Having read and reviewed the parties' submissions and the applicable law, and having heard the testimony of the witnesses noted above, the Court GRANTS Brown's motion.
In March 2014, 39 year old Lorinda Brown lived with her boyfriend, Ryan Cislo, and her mother, Connie Johnson, on Rainier Street in Billings, Montana. Cislo and Brown shared a bedroom. Later that month, or early the next month, Cislo was arrested for a probation violation and went to jail. While Cislo was in jail, Johnson purchased and moved into a different mobile home on Attica Street North in Billings. Brown moved Cislo's clothing and personal effects to Johnson's Attica Street North residence. When Cislo got out of jail on May 7, 2014, he moved in to Johnson's Attica Street North residence. He and Brown shared a bedroom and his clothing and personal effects were located there. He had no other residence.
On June 8, 2014, Cislo showed Johnson three handguns and a rifle. He told her he was "happy" to be able to go out and shoot them. Scared, Johnson called the police the next day and asked them to search Cislo's belongings. The police refused to search the premises because neither Brown nor Cislo were present to consent and no search warrant had been issued.
At the police's suggestion, Johnson called Cislo's probation officer, Steven Peek of Montana State Probation and Parole. She told Peek that Cislo was in a relationship with her daughter, Brown, and had been living in Johnson's mobile home on Attica Street North since he was released from jail on May 7, 2014. Johnson told Peek that Cislo had recently shown her three handguns and a rifle and she was concerned that he was involved in drug activity. She also told Peek that she had grown afraid of Cislo during the time he lived with her. She requested that Peek come to her residence and search Cislo's belongings for the guns.
Approximately 45 minutes later, Peek, and Adult Probation and Parole Officers John Frost, Brad Pinnick, and Joseph Dompier arrived at Johnson's mobile home on Attica Street North. Neither Cislo nor Brown was present. Johnson showed the officers to a bedroom in her mobile home. She told them that Cislo shared the room with Brown and had lived in it off and on for approximately 5 weeks. Johnson told Peek that she had kicked Cislo out of the house the previous night and he was not allowed to return.
During their search of the bedroom, the officers discovered two handguns, a Taurus.45 pistol and a Hi-Point 9 mm pistol, under the bed mattress. They also found Cislo's wallet. They contacted ATF Task Force Officer Stephen Feuerstein and requested that he come to the trailer and take possession of the guns. The officers continued to search the bedroom and found a Sentry handgun safe. When Officer Feuerstein arrived, he opened the safe and discovered a Derringer pocket pistol.
After collecting the firearms and ammunition, Officer Feuerstein spoke with Johnson. He wanted to reiterate that Johnson had observed Cislo with three firearms and obtain a statement about how she knew Cislo had the firearms and that the room was occupied by Cislo and Brown. She identified the three guns in Feuerstein's possession as those that Cislo had shown her previously. She also confirmed that she had provided consent to the probation officers to search her home.
A. As an adult, Brown had a reasonable expectation of privacy in her bedroom.
Because the Fourth Amendment protects "people not places, " Katz v. United States, 389 U.S. 347, 351 (1967), Brown must first demonstrate that she personally had a "legitimate expectation of privacy" in the bedroom. The government concedes this element, (doc. 53 at 8), so the Court next turns to whether the search was lawful. See United States v. Singleton, 987 F.2d 1444, 1449 (9th Cir. 1993) (the demonstration of a legitimate expectation of privacy "is a threshold standing requirement, and analysis cannot proceed further without its establishment.")
1. Consent to search Brown's bedroom
Having conceded that Brown had a legitimate expectation of privacy in her bedroom, the Court must determine whether Johnson had authority to consent to the search. "A warrantless entry into a home violates the Fourth Amendment unless an exception to the Fourth Amendment warrant requirement applies, such as emergency, exigency, or consent." Espinosa v. City & County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010). Although "consent is a recognized exception to the Fourth Amendment's protection, " United States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012), the government has the burden of establishing the effectiveness of a third party's consent to a search of a defendant's property. Welch, 4 F.3d at 764. To meet its burden, the government must demonstrate that Johnson ...