United States v. Dunning

United States Court of Appeals
For the First Circuit

No. 02-1540

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY DUNNING,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Bjorn Lange, Assistant Federal Public Defender, on brief, for
appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.

December 10, 2002
 Per Curiam. Defendant-appellant, Jeffrey Dunning, was

charged with one count of tampering with a witness, victim or

informant in violation of 18 U.S.C. § 1512(b)(2)(B). Prior to

trial, Dunning moved to suppress an envelope and letter that he had

sent to his girlfriend, Dawn Touchette, while he was an inmate at

the Merrimack House of Corrections. The appellant sent the letter,

which was seized during a search of the Touchette home made

pursuant to a warrant by the Bureau of Alcohol, Tobacco and

Firearms, to warn the Touchettes that the ATF was preparing to raid

the Touchette home in search of explosive materials. While

searching the house, an ATF agent discovered the letter in the

bedroom of Dawn Touchette. The appellant claimed that the seizure

of the envelope constituted a violation of his Fourth Amendment

protections against unreasonable searches and seizures. After an

evidentiary hearing on January 2, 2002, the district court denied

appellant's motion to suppress the letter, finding that the

appellant lacked standing to challenge the search of the bedroom

and seizure of the letter. On January 29, 2002, pursuant to a plea

agreement, the appellant entered a conditional plea of guilty,

reserving the opportunity to appeal the denial of his motion to

suppress. Dunning now appeals the district court's denial of his

motion. For the following reasons, we affirm.

Jeffrey Dunning and Dawn Touchette started dating in

1999. Dunning would visit Dawn at her family's home where she

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lived with her mother and her father, Bradley Touchette. At first,

Dunning's visits mainly consisted of sneaking into Dawn's bedroom

when her father was away from home. Later, the Touchettes would

allow Dunning to spend the night in an extra bedroom. Dunning did

not have a key to the Touchette home, to Dawn's room or to the

extra room he occasionally stayed in. He did not pay rent; nor did

he contribute to the cost of household duties. At no point did he

have the right to exclude others from the house or the bedroom he

stayed in; by all accounts, Dunning was simply a frequent guest at

the Touchettes.

On March 1, 2000, Dunning learned that Dawn Touchette was

pregnant. After learning that he was the father, Dunning

surrendered himself on outstanding state criminal warrants and went

into custody at the Merrimack County House of Corrections. Dunning

kept a correspondence with Dawn while he was incarcerated.

At Dunning's request, an ATF agent paid him a visit at

the Merrimack County House of Corrections in early May 2000.

During that interview, Dunning informed the ATF agent that while he

was a guest at the Touchette home, he observed Bradley Touchette

storing six fifty-pound bags of explosive materials in a locked

freezer in the basement. He also described threats that Touchette

had made about using the materials to retaliate against the

government for problems with his retirement pension.

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 Relying on the information provided by the appellant, the

ATF obtained a search warrant authorizing its agents to enter the

Touchette home in search of the explosive materials. When agents

raided the Touchette residence on July 5, 2000, they did not find

any explosives, either in the basement freezer or in the rest of

the house. The only suspicious item found in the house turned out

to be a letter from their own informant, Jeffrey Dunning. While

searching Dawn Touchette's bedroom, an ATF agent observed an

envelope and letter lying in plain view on the floor. The envelope

bore Jeffrey Dunning's name on the return address and was

postmarked June 15, 2000 -- approximately one month after Dunning

gave an interview to the ATF and two weeks prior to the search of

the Touchette home. In the letter, Dunning informed Dawn Touchette

that he had been in contact with the ATF. Dunning further informed

her that the ATF was on the verge of searching the Touchette home.

Anticipating the ATF search, the appellant instructed Dawn to

"[g]et every thing [sic] and everything illegal out of that house

now." Dunning urged Dawn to "[t]alk to her parents" about his

warning.

The envelope and letter were seized. Dunning was charged

with one count of tampering with a witness, victim or informant.

Prior to trial, Dunning moved to suppress the letter and its

contents on the grounds that the search and seizure of the letter

violated his Fourth Amendment protection against unreasonable

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searches. The district court denied the motion to suppress, and

Dunning entered a plea of guilty. He now appeals. In this appeal,

Dunning argues that the district court erred when it determined

that he lacked a legitimate expectation of privacy in the letter

sufficient to give him standing to challenge the search. Dunning's

claim is based on two arguments. First, Dunning contends that he

had an expectation of privacy in a letter sent to a girlfriend with

whom he had an intimate relationship and an understanding that the

two would save their letters to each other, and that this

expectation ought to be recognized as reasonable. Second, Dunning

argues that because he was a regular guest at the Touchette home

for a period prior to his incarceration, he is entitled to an

expectation of privacy in the home greater than that afforded to

casual visitors. Both of these arguments fail.

In reviewing a district court's denial of a suppression

motion, this Court reviews the district court's findings of fact

for clear error. United States v. Schaefer, 87 F.3d 562, 565 (1st

Cir. 1996); United States v. Zapata, 18 F.3d 971, 975 (1st Cir.

1994). Contrary to this deferential standard of review for

questions of fact, this Court reviews questions of law de novo.

Id. This approach is in accord with Ornealis v. United States, 517

U.S. 690 (1996), in which the Supreme Court employed a dichotomous

standard of review in the Fourth Amendment context, reviewing

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constitutional questions de novo while employing the deferential

clear error standard to review findings of fact. Id. at 698-99.

While it is well settled that "[l]etters and other sealed

packages are in the general class of effects in which the public at

large has a legitimate expectation of privacy," United States v.

Jacobsen, 466 U.S. 109, 114 (1984), the Fourth Amendment does not

protect items that a defendant "knowingly exposes to the public."

United States v. Miller, 425 U.S. 435, 442 (1976). Consequently,

if a letter is sent to another, the sender's expectation of privacy

ordinarily terminates upon delivery. United States v. Gordon, 168

F.3d 1222, 1228 (10th Cir. 1999); United States v. King, 55 F.3d

1193 (6th Cir. 1995).

In this case, Dunning sent the letter to his girlfriend,

Dawn Touchette, and encouraged her to share its contents with her

parents. Dunning does not assert a relationship of legal

confidentiality with Touchette; his assertion that he has a privacy

interest in the letter derives entirely from Dunning's expectation

that the two would keep their letters until after Dunning's release

from prison, perhaps even to include them in a scrapbook. However,

even if the sentimental letter in question -- sent to tip off the

Touchettes that they were the subject of an imminent raid by

federal agents -- was indeed a cherished memento to be preserved

for the future, this does not change the fact that Dunning

relinquished any expectation of privacy he may have otherwise had

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in the letter when it was delivered to Dawn Touchette. Id. at

1196.

Dunning's second claim -- that he had a legitimate

expectation of privacy in Dawn Touchette's room at the time of the

search because he was previously a guest in the Touchette home --

also fails. In order to contest a search or seizure on Fourth

Amendment grounds, a defendant has the burden of establishing that

he has a legitimate and reasonable expectation of privacy in the

premises searched or property seized. Rawlings v. Kentucky, 448

U.S. 98, 104-05 (1980); Rakas v. Illinois, 439 U.S. 128, 143

(1978). Therefore Dunning can claim the protection of the Fourth

Amendment only if he had a legitimate expectation of privacy in the

Touchette home in general, and Dawn Touchette's bedroom in

particular, during his incarceration at the Merrimack House of

Corrections.

Dunning did not have a legitimate expectation of privacy

giving him standing to contest the search of the house or the

bedroom. The evidence elicited at the suppression hearing clearly

establishes that while Dunning was a guest at the Touchette home

for a time, his status as a guest terminated when he surrendered

himself on the state warrants. He was not in the dwelling

immediately preceding the search. Even when Dunning was a guest at

the Touchette home, he did not have an ownership or tenant interest

in the home; he did not have a key; he could not be in the house

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unless someone with a key let him in; he did not have the right to

exclude anyone from the house or the bedroom. Dunning's standing

to contest a search of the Touchette home, if it ever existed,

never extended to Dawn Touchette's bedroom, and expired when he

ceased to be a guest of the Touchettes.

We hold that appellant failed to bear his burden of proof

of establishing a legitimate expectation of privacy, either through

his relationship with Dawn Touchette, or in the area where the

letter was seized. Rakas, 439 U.S. at 140-41. Therefore, the

district court properly denied the motion to suppress. Accordingly,

the judgment must be affirmed.

Affirmed.

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