United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 15, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-60136
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY TAYLOR,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Larry Taylor (“Taylor”), who had earlier been convicted in the
Mississippi courts, was a participant in the state’s Earned Release
Supervision Program (“ERS”). While he was on supervised release,
the Mississippi authorities conducted a warrantless search of his
girlfriend’s residence, where Taylor was an overnight guest, and
found a firearm. Taylor was indicted in federal court for being a
felon in possession of a firearm. He moved to suppress the firearm
as evidence from an unconstitutional search. The district court
denied this motion and Taylor entered a conditional guilty plea
pending the outcome of this appeal. Finding no error, we affirm.
I.
Taylor was convicted of business burglary and sentenced to
seven years. After serving part of his term, he was released into
ERS. As a condition of his participation in this program, Taylor
was required to sign a form that stated that he understood that he
would retain “inmate status” during his participation in ERS and
thus was “subject to search of [his] person, residence, or vehicle
by [his] Field Officer or any other law enforcement officer at any
time.” While in ERS, Taylor’s Field Officer was Jennifer Dykes
(“Dykes”).
In November 2004, Dykes contacted Keith Roberts, an officer
with the Mississippi Department of Corrections, to report that a
complaint had been made against Taylor for malicious mischief, that
Taylor was reported to have a handgun, and that Taylor had failed
to report to the county field office as directed.
On November 15, 2004, Department of Corrections officers,
together with fugitive task force agents from the United States
Marshal Service and Canton Police Officers, went to an apartment
complex where they believed Taylor was located. The apartment was
not Taylor’s residence and was rented to a woman. The Canton
Police had a misdemeanor arrest warrant for the defendant based
upon the malicious mischief complaint, but none of the agencies had
a search warrant for the apartment. The team was aware that a
girlfriend of the defendant, Katherine Johnson, had obtained a .40
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caliber pistol on October 22, 2004, and that the defendant might be
in possession of it when they located him.
The team went to the apartment and knocked on the door, but no
one answered. The officers then forcibly entered the apartment.1
Taylor was located hiding in the back bedroom, where he was
arrested. While he was being secured, one of the officers went
searching for the .40 caliber pistol and found it in a dresser
drawer in another bedroom.
Taylor was indicted in federal court under 18 U.S.C. §§
922(g)(1) and 924(a)(2) for possessing a firearm after having been
previously convicted of a felony. Taylor moved to suppress,
arguing that the warrantless entry and search of his girlfriend’s
apartment were unlawful. Taylor testified at the suppression
hearing that he told the Department of Corrections that he lived
with his aunt at 466 Martin Luther King Drive, Canton Mississippi.
He said that he was an overnight guest at his girlfriend’s
apartment and that he had no personal possessions with him other
than his toothbrush. The district court conducted an evidentiary
hearing and denied the motion, holding that the entry and search
were justified by the consent Taylor executed upon entering the ERS
program. Taylor entered a conditional plea of guilty to possession
1
The parties differ here in their description of the events.
The Government says that the team heard movement inside the
apartment and observed the defendant looking out the back window.
Taylor maintains that the officers, upon receiving no response to
their knock, simply entered the apartment. This factual dispute is
of no consequence, however, in the resolution of this case.
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of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving his
right to proceed with the instant appeal. Taylor was sentenced to
21 months of imprisonment and 3 years of supervised release.
II.
On appeal, Taylor argues that the district court erred in
denying his motion to suppress on the basis of his ERS consent.
Taylor maintains that he expressly consented only to the search of
his person, his residence, and his vehicle. Taylor further argues
that neither the misdemeanor arrest warrant, nor exigent
circumstances, justified the arrest.
A.
In reviewing the denial of a motion to suppress, factual
findings are reviewed for clear error and the trial court’s
conclusions as to the constitutionality of the search are reviewed
de novo. United States v. Cherna, 184 F.3d 403, 406 (5th Cir.
1999), cert. denied, 529 U.S. 1065 (2000). We may affirm the
district court on any basis supported by the record. United States
v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995).
B.
This case centers on the extent to which Taylor has rights to
assert Fourth Amendment protections to his girlfriend’s residence.
Taylor claims standing as an overnight guest, relying on the
Supreme Court’s decision in Minnesota v. Olson, 495 U.S. 91 (1990).
There, the Court held that a houseguest has a legitimate
expectation of privacy in his host’s home, sufficient to “enable
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him to be free in that place from unreasonable searches and
seizures.” Id. at 98. Relying on Olson, Taylor contends that the
misdemeanor warrant was insufficient to support the search, and
that the search of the bureau in the second bedroom, which led to
the discovery of the gun, was not a valid search incident to
arrest.
Taylor fails to recognize that under Olson, his Fourth
Amendment rights as a guest are limited to those that he could
assert with respect to his own residence. In holding that an
overnight guest has a reasonable expectation of privacy in his
host’s home, the Court explained that overnight lodgings serve the
same purpose of providing privacy and security on a temporary basis
as one’s home does more permanently.
From the overnight guest’s perspective, he
seeks shelter in another’s home precisely
because it provides him with privacy, a place
where he and his possessions will not be
disturbed by anyone but his host and those his
host allows inside. We are at our most
vulnerable when we are asleep because we
cannot monitor our own safety or the security
of our belongings. It is for this reason
that, although we may spend all day in public
places, when we cannot sleep in our own home,
we seek out another private place to sleep,
whether it be a hotel room, or the home of a
friend.
Id. at 99. The Court ultimately affirmed the lower court’s finding
that an overnight guest has established a “sufficient connection
with the premises to be treated like a householder” for standing
purposes. Id. at 95 (emphasis added). Olson simply extends to the
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houseguest the Fourth Amendment rights he would have in his own
home. Our holding here is consistent with the well-established
principle that “the Fourth Amendment protects people, not places.”
Katz v. United States, 389 U.S. 347, 351 (1967).
C.
Taylor’s rights while on supervised release are more limited
than those of the average citizen. In United States v. Knights,
534 U.S. 112 (2001), the Supreme Court considered the effect of a
consent statement similar to the one here on the warrantless search
of a probationer’s home. The Court declined to decide “whether
Knights’ acceptance of the search condition constituted consent in
the Schneckloth sense of a complete waiver of his Fourth Amendment
rights,” id. at 118, but instead determined that “the search of
Knights was reasonable under [the] general Fourth Amendment
approach of examining the totality of circumstances with the
probation search condition being a salient circumstance.” Id.
(internal quotation marks and citation omitted). After weighing
the effect of the probation condition on Knights’s privacy
interest, the Court concluded that the Fourth Amendment
reasonableness inquiry “requires no more than reasonable suspicion
to conduct a search of this probationer’s house. The degree of
individualized suspicion required of a search is a determination of
when there is sufficiently high probability that criminal conduct
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is occurring to make the intrusion on the individual’s privacy
interest reasonable.” Id. at 121.2
Presuming that Taylor was a houseguest, he was entitled to the
same Fourth Amendment protections in his girlfriend’s apartment
that he would have received in his own home. The question
therefore, is whether there was a sufficiently high probability
that criminal conduct was occurring. In this case, unlike in
Knights, the police had a misdemeanor arrest warrant at the time
they entered the house. They also had evidence suggesting that
Taylor was in possession of a firearm and that he was in violation
of the conditions of his parole. This evidence is sufficient to
support a determination that the police had reasonable suspicion
that Taylor may have been engaged in criminal conduct.
This analysis does not address the question whether the
police’s warrantless entry may have violated the Fourth Amendment
rights of Katherine Johnson, who occupied the apartment as a
resident. Taylor cannot, however, reasonably assert that his
Fourth Amendment rights have been violated by this intrusion.
2
It is possible that even this reasonableness requirement has
been eliminated. In Samson v. California, 126 S. Ct. 2193 (2006),
the Supreme Court upheld the suspicionless search of a parolee’s
person by law enforcement, reasoning that “parolees have fewer
expectations of privacy than probationers, because parole is more
akin to imprisonment than probation is to imprisonment.” Id. at
2198. We need not consider this distinction in Taylor’s case,
however, because the police had reasonable suspicion prior to the
entry and search.
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Under the Knights test, the search would have been lawful, had it
occurred in his home.
III.
For the foregoing reasons, the ruling of the district court
denying Larry Taylor’s motion to suppress is correct, and the
judgment of conviction is
AFFIRMED.
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