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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