In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3033
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS C URLIN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cr-29-SEB-KPF—Sarah Evans Barker, Judge.
A RGUED F EBRUARY 25, 2011—D ECIDED A PRIL 25, 2011
Before E ASTERBROOK, Chief Judge, and F LAUM and
R OVNER, Circuit Judges.
F LAUM, Circuit Judge. In June 2008, Marcus Curlin
stopped paying rent on his Indianapolis residence. Five
months later, his landlord obtained an eviction order in
an Indiana court requiring Curlin to vacate the property
by November 17, 2008. He did not. After Curlin had
flouted the order for over two weeks, officers came to
the residence to execute the eviction order. There, they
2 No. 10-3033
discovered marijuana and guns in plain view. Curlin, who
had two prior felony convictions, was arrested and
charged with possession of firearms by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Following the denial
of his motion to suppress the guns, Curlin entered a
conditional plea of guilty to the charges, reserving his
right to appeal the district court’s refusal to suppress the
gun evidence. On appeal, Curlin argues that the district
court abused its discretion in denying his motion to
suppress without an evidentiary hearing. Because Curlin
has failed to identify any disputed issues of fact that
affect the outcome of the motion, we affirm the judgment
of the district court.
I. Background
On October 17, 2008, Curlin’s landlord filed a small
claims action against Curlin in Franklin Township, Indi-
ana, seeking possession of Curlin’s leased residence for
failure to pay rent. A Notice of Claim for Possession of
Real Estate and Summons were served on Curlin by
mail and by delivery to his residence. The summons
ordered Curlin to appear in court on November 5, 2008.
When Curlin did not appear as ordered, the case was
continued until November 12, 2008, and notice of the
new court date was mailed to him. Curlin again failed to
appear. The small claims court then entered judgment
in favor of the landlord. The court clerk issued a Writ
of Restitution and Notice to Move on November 14, 2008.
The Writ—which essentially was an eviction order—
ordered Curlin to vacate the property on or before
No. 10-3033 3
6:00 p.m. on November 17, 2008. The Writ further
ordered “any constable of Marion County” to put the
landlord in possession of the residence, and to remove
Curlin and his belongings from the property. Finally,
the Writ authorized officers to sell any of Curlin’s non-
exempt property to satisfy the court’s restitution order.
Constables twice attempted to personally serve the
Writ on Curlin. First, on November 15, 2008, constables
left a copy of the Writ on the door of Curlin’s residence.
On November 24, 2008, constables made a second
attempt to serve the Writ. Again they left a copy on
the door because, despite the fact that the lights were on
in the residence, no one answered the door.
Also on November 24, 2008, an unsigned “Letter to
Judge” was filed in the small claims court, stating: “Con-
tents of property 11/19/08 3,000 sq. ft. fully furnished 4
Br. Several flatscreen TVs, laptops, police found SKS
assault rifle and weed in the house. IMPD.” According to
the government, “IMPD” may refer to the Indianapolis
Metropolitan Police Department.
Constable Bob Walden, with the assistance of officers
from the warrant section of the Marion County Sheriff’s
Department, executed the Writ on December 2, 2008.
Prior to carrying out the eviction, the Sheriff’s Depart-
ment ran a criminal history check on Curlin and learned
that he had two prior felony convictions. When the
officers arrived at the residence, Walden knocked and
announced his presence. Curlin answered the door a
few minutes later and Walden explained the purpose
of their visit. Officers then entered the residence, secured
4 No. 10-3033
Curlin in the entryway, and conducted what the gov-
ernment characterizes as a “safety sweep” of the home.
That sweep extended to the upstairs master bedroom,
where officers found a plastic bag containing approxi-
mately 15 grams of marijuana on the bed. Deputies also
entered the walk-in closet of the master bedroom, where
they discovered a rifle and a 12-gauge shotgun, on a
shelf. After seizing the drugs and firearms (which
federal law prohibited Curlin, a convicted felon, from
possessing), officers arrested Curlin and advised him of
his Miranda rights. Curlin then informed the deputies
that a third firearm, a .38 revolver, was in the home,
which police also seized.
On February 24, 2009, Curlin was charged in a three-
count indictment with possession of firearms by a con-
victed felon, in violation of 18 U.S.C. § 922(g)(1).
Curlin moved to suppress the evidence seized on Decem-
ber 2 on the ground that it was obtained during an unrea-
sonable search in violation of his Fourth Amend-
ment rights. After full briefing but without a hearing, the
district court issued an order denying the suppression
motion. That order includes the following findings of fact:
Constable Walden had received information that
Curlin had made statements to deputy constables
threatening to disobey the court order and to bar-
ricade himself in the residence and shoot it out with
the police with a high-powered rifle. Also, deputy
constables who were at the residence on a previous
date to discuss eviction paperwork with Curlin had
observed a rifle in plain view in the living room.
No. 10-3033 5
The order denies the motion on two grounds. First, the
court determined that the protective sweep was not
unreasonable in light of the officers’ legitimate safety
concerns, and that the seizures were justified by the “plain-
view” doctrine. Second, the court concluded that even
if the protective sweep exceeded the bounds of reason-
ableness, exclusion of the evidence was not required
because the officers inevitably would have discovered it
by lawful means in carrying out the eviction order.
Following the denial of his suppression motion, Curlin
pled guilty, on the condition that he be permitted to
appeal the denial of the motion. The district court accepted
the plea agreement on August 17, 2010, and sentenced
Curlin to 100 months of imprisonment, followed by three
years of supervised release. Curlin timely appealed the
denial of his suppression motion.
II. Discussion
Curlin argues that the district court erred in denying the
motion to suppress without an evidentiary hearing.
According to Curlin, an evidentiary hearing would have
resolved certain disputed facts in his favor, and demon-
strated that an unreasonable search of his home occurred,
in violation of the Fourth Amendment.
We review the denial of an evidentiary hearing on a
motion to suppress for abuse of discretion. United States
v. McGaughy, 485 F.3d 965, 969 (7th Cir. 2007). District
courts are required to conduct evidentiary hearings only
when a substantial claim is presented and there are
6 No. 10-3033
disputed issues of material fact that will affect the out-
come of the motion. Id. (citations omitted). In order to
be granted an evidentiary hearing, the defendant’s al-
legations and moving papers must be “sufficiently
definite, specific, non-conjectural and detailed.” Id. The
defendant bears the burden of both identifying a
definite disputed factual issue, and demonstrating its
materiality. Id. (citations omitted).
In an effort to meet that burden, Curlin points to two
allegedly disputed facts—(1) whether Constable Walden
had received information that Curlin threatened to
resist eviction and shoot it out with the police, and
(2) whether officers previously observed a rifle in plain
view in Curlin’s living room. To determine whether the
disputed facts are material—meaning whether either
affects the outcome of the motion—we analyze Curlin’s
Fourth Amendment claim on the assumption that both
facts are false. If Curlin’s claim nevertheless fails, then
the disputed facts are not material to the resolution of
the suppression motion, and Curlin was not entitled to
an evidentiary hearing.
The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures. . . .”
U.S. C ONST. amend. IV. Fourth Amendment claims
present two distinct questions: (1) whether a search or
seizure actually occurred; and (2) if so, whether the
search or seizure was unreasonable. Carlson v. Bukovic,
621 F.3d 610, 618 (7th Cir. 2010).
Our first task is to determine whether the protective
sweep, which is the focus of Curlin’s claim, constituted
No. 10-3033 7
a search for purposes of the Fourth Amendment. Kyllo
v. United States, 533 U.S. 27, 31 (2001). A search takes
place when governmental action infringes upon an in-
dividual’s legitimate expectation of privacy, meaning a
subjective expectation of privacy that society is prepared
to consider reasonable. See United States v. Jacobsen, 466
U.S. 109, 113 (1984).
The Fourth Amendment explicitly protects the house,
and entry by officers into a home is generally considered
a search. But see Kyllo, 533 U.S. at 33 (noting that “a
Fourth Amendment search does not occur—even when
the explicitly protected location of a house is concerned—
unless ‘the individual manifested a subjective expecta-
tion of privacy in the object of the challenged search,’ and
‘society [is] willing to recognize that expectation as rea-
sonable’ ”) (emphasis in original) (citation omitted). But
there is a key distinction in this case—Curlin had no
lawful right to be in the residence he was occupying on
December 2, 2008. Curlin had been evicted over two
weeks earlier following an action in Indiana court, and
had been given notice of his eviction when officers twice
left copies of the eviction order at the residence. Like
a “burglar plying his trade in a summer cabin during
the off season,” Curlin’s presence was “wrongful,” and
consequently any subjective expectation of privacy he
may have had is not “one that society is prepared to
recognize as ‘reasonable.’ ” Rakas v. Illinois, 439 U.S. 128,
143-44, n.12 (1978) (citations omitted). Because Curlin
had no legitimate expectation of privacy in the residence,
no Fourth Amendment search occurred.
8 No. 10-3033
Our conclusion is consistent with previous decisions
of our sister circuits that individuals who occupy a piece
of property unlawfully have no claim under the Fourth
Amendment. See United States v. Struckman, 603 F.3d
731, 746 (9th Cir. 2010) (trespassers cannot claim the
protections of the Fourth Amendment); United States v.
Washington, 573 F.3d 279, 284 (6th Cir. 2009) (same); United
States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980) (same);
Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975)
(squatters formally evicted from public land had no
expectation of privacy in homes they unlawfully con-
structed there); United States v. Ruckman, 806 F.2d 1471,
1472-74 (10th Cir. 1986) (individual lacked reasonable
privacy expectation in cave in which he resided on
federal land); United States v. Gale, 136 F.3d 192, 195 (D.C.
Cir. 1998) (individual lacked legitimate expectation of
privacy in apartment he occupied without permission of
its tenant or other legal authority); United States v.
Rambo, 789 F.2d 1289, 1295-96 (8th Cir. 1986) (hotel occu-
pant who was asked to leave by police officers acting
on behalf of hotel management no longer had a rea-
sonable expectation of privacy in the hotel room). Had
Curlin’s landlord not obtained an eviction order of
which Curlin had notice, the analysis would be different.
See Ryan v. Mary Immaculate Queen Center, 188 F.3d 857,
859 (7th Cir. 1999) (where officers attempting to serve
tenants with a summons in landlord’s eviction action
conducted a warrantless search, tenants could maintain
Fourth Amendment claim because landlord had not yet
obtained a valid order granting him exclusive possession
of the premises); Washington, 573 F.3d at 284 (tenant
No. 10-3033 9
retains objectively reasonable expectation of privacy
despite being in technical violation of lease until landlord
takes legal action to evict); United States v. Young, 573
F.3d 711, 720 (9th Cir. 2009) (individual had reasonable
expectation of privacy in hotel room from which he
had not been evicted at the time of the warrantless
search). But given that Curlin had notice that his con-
tinued occupancy had been adjudged to be unlawful,
we have no difficulty concluding that he lacked
any objectively reasonable expectation of privacy in the
premises. Thus, no illegal search occurred requiring
the suppression of the gun evidence.
While Curlin focuses on the existence of a search,
we note that a Fourth Amendment claim based on the
warrantless seizure of the evidence would be equally
unsuccessful, as the items were validly seized under
the “plain-view” doctrine. That doctrine justifies
a warrantless seizure when three conditions are
met. First, the officer must not have violated the Fourth
Amendment in arriving at the place from which the
evidence could be plainly viewed. Horton v. California,
496 U.S. 128, 136 (1990). Second, the incriminating char-
acter of the evidence in plain view must be immedi-
ately apparent. Id. Third, the officer must have “a
lawful right of access to the object itself.” Id.
As discussed above, the officers did not violate the
Fourth Amendment in entering the master bedroom and
closet, where it is undisputed that the guns sat in plain
view. And the Writ of Restitution gave the officers the
legal right to enter the residence by ordering them to
10 No. 10-3033
put the landlord in possession of the premises, and to
remove Curlin and his belongings from the property.
Therefore, they were in the bedroom and closet lawfully
when they viewed the evidence. The incriminating
nature of an object is “immediately apparent” if, under
the circumstances, the officer has “probable cause to
believe that the item is linked to criminal activity.” United
States v. Bruce, 109 F.3d 323, 328 (7th Cir.1997). The
officers learned that Curlin was a convicted felon before
arriving at the residence. Federal law prohibits felons
from possessing firearms, and consequently the incrim-
inating character of the guns would have been immedi-
ately apparent to the officers. See United States v. Cooper,
19 F.3d 1154, 1163 (7th Cir. 1994). Finally, the Writ
ordered officers to remove all of Curlin’s belongings
and to sell any non-exempt property to satisfy the resti-
tution order. Therefore, the officers had a lawful right
of access to the objects themselves.
An evidentiary hearing was not necessary in this case
because, even construing the disputed facts in Curlin’s
favor, his Fourth Amendment claim fails for the reasons
stated above. Thus, Curlin has failed to identify any
disputed issues of material fact, and the district court
did not abuse its discretion by declining to hold an evi-
dentiary hearing.
III. Conclusion
We A FFIRM the judgment of the district court.
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