concurring:
I concur in the result because I agree that the district court was required to address Haqq’s expectation of privacy in the suitcase itself and failed to do so. I write separately to express my strong opinion regarding the presumption of privacy that should attach to every item not within plain view within a person’s home. I am troubled by our decision’s potential to facilitate government intrusion into what we think of as private space. In my opinion, if a defendant is not verbally or physically barred by his co-residents from accessing certain places or items within his home, that fact should weigh heavily in the defendant’s favor when determining whether he enjoys a reasonable expectation of privacy in those places or items.
As a general policy, I would support a presumption that a resident has a reasonable expectation of privacy in all things within his home not within plain view. It is well settled that the question of whether a defendant has “standing” to bring a Fourth Amendment challenge is more properly subsumed under the substantive analysis of whether the defendant’s Fourth Amendment rights were violated. Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Whether a defendant’s Fourth Amendment rights were violated, in turn, depends on whether the defendant enjoyed a legitimate expectation of privacy in the place or thing searched. Id. at 143, 99 S.Ct. 421. But if, in the interest of obtaining evidence, the police were allowed to proceed without any presumption that the resident of a home enjoys an expectation of privacy in everything in that home not within plain view, one of two consequences may follow, either of which is undesirable.
First, the lack of a presumption could necessitate a probing inquiry by the police every time they attempt to perform a valid search that is not bound by the constraints of a warrant. The police would be required to ask a series of questions about every object they wished to search, including: “Is this yours?” or “If this is not yours, are you using it with the permission of the owner?” or “Do you have a right to exclude others from this container?” This is just the sort of situation, “qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions” that the Supreme Court has cautioned against. New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (quotation marks omitted).
Alternatively, the police could be permitted to search every object in a home for contraband or evidence of crimes without any presumption that the resident of the home expects those objects to remain free from government intrusion. This would exact an enormous cost on the privacy and sanctity of citizens’ homes while offering little promise of any resulting benefit to law enforcement because it is more likely than not that the citizens would have an expectation of privacy in all of the things within their home that are searched. While it is true that a defendant must assert a legitimate expectation of privacy in the item searched, it is also true that, “in the case of the search of the interior of homes ... there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.” Kyllo v. United States, 533 U.S. 27, -, 121 S.Ct. 2038, 2043, 150 L.Ed.2d 94 (2001). Employing a presumption of privacy as a policy would serve to restrain police exuberance and minimize the resulting expense of judicial resources and intrusion on citizens’ comfort in their residences.
*53“[T]he [Supreme] Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon ‘governmental action’ — that is, ‘upon the activities of sovereign authority.’ ” New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (quoting Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921)). The ultimate question in the Fourth Amendment calculus is whether one’s claim to privacy from government intrusion “is reasonable; ie., one that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421). I believe that because the suitcase was in his home, Haqq can show a reasonable expectation of privacy under either formula.
Haqq was a resident of the apartment in which the suitcase was located. He had used the suitcase for the prior two weeks. He left his possessions in the suitcase and directed that the suitcase be placed in Peavy’s bedroom, indicating a strong claim to a possessory interest if the district court were to evaluate the issue of Haqq’s expectation of privacy with reference to personal property law. See Rakas, 439 U.S. at 149, 99 S.Ct. 421 (explaining the Court’s holding in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), by stating that “[ejxcept with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it”); see also infra Section II (“[T]he Supreme Court’s holding that the defendant in [Arizona v.] Hicks [, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987),] had a reasonable expectation of privacy in the stereo equipment reflects a conclusion that exclusive custody and control of an item within one’s home is sufficient to establish a reasonable expectation of privacy in that item.”).
In addition, Haqq directed Myers to hide the guns. Myers hid the guns in a suitcase he and Haqq had used for two weeks that was located — at Haqq’s request — in a bedroom of the apartment in which Haqq lived and was present at the time of the search. If the district court were to evaluate the reasonableness of Haqq’s privacy expectation with respect to “ ‘understandings that are recognized and permitted by society,’” Carter, 525 U.S. at 88, 119 S.Ct. 469 (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421), it appears that his expectation was entirely reasonable unless the district court finds that Peavy forbade Haqq to use Peavy’s suitcase.
Given the longstanding acceptance of a legitimate and recognized expectation of privacy in the interior of the home, there is, it seems to me, a marked difference between the police encountering a suitcase on the street and seeing the same suitcase in a bedroom within someone’s home— even a shared home. The police’s legitimate presence in Haqq’s residence and their legitimate right to perform a protective sweep of the premises did not suddenly transform for Fourth Amendment purposes the interior of the apartment into a public plaza. “To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.” United States v. Reed, 572 F.2d 412, 423 (2d Cir.1978) (emphasis added). A resident’s heightened expectation of privacy begins at the threshold of his door and should not disappear simply because the police legitimately have crossed that threshold. See Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“In none [of the settings protected by the Fourth Amendment] is the zone of privacy more *54clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”).
The protection of the Fourth Amendment, by necessity, exists in degrees. While we are protected from unreasonable government intervention in our businesses, automobiles and in public, the protection we enjoy in these situations is far less than the ultimate protection we receive in our homes. Compare Dow Chem. Co. v. United States, 476 U.S. 227, 237 n. 4, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (viewing a large industrial plant with sophisticated camera equipment from an airplane held valid because “this is not an area immediately adjacent to a private home, where privacy expectations are most heightened”), with Kyllo, 533 U.S. at-, 121 S.Ct. at 2046 (using heat sensing equipment not generally available to the public to determine the relative heat emanating from sections of a home found illegal due to the “ ‘firm line [drawn] at the entrance to the house’ ” (quoting Payton, 445 U.S. at 590, 100 S.Ct. 1371)).
Accordingly, I believe that when considering the reasonableness of Haqq’s expectation of privacy in the suitcase the district court should give great weight to the suitcase’s location within the “unambiguous physical dimensions of [his] home.” Payton, 445 U.S. at 589, 100 S.Ct. 1371.
In my opinion, on this record the district court would not err if it found that Haqq had a reasonable expectation of privacy in the suitcase.