United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Jermaine
Doss's Motion to Suppress Evidence, [Doc. 49], filed on
October 13, 2017. The government filed its Response to the
Motion [Doc. 77] on October 29, 2017. The Court held an
evidentiary hearing on the Motion on November 13, 2017.
Having considered the Motion and the relevant law, and being
otherwise fully informed, the Court finds that the Motion is
not well-taken and will be denied.
January 24, 2017, a Superseding Indictment was returned
charging Mr. Doss with three counts of sex trafficking, in
violation of 18 U.S.C. § 1591(a). [Doc. 17]. The
following summarizes the testimony of Department of Homeland
Security Special Agent David Dindinger, Albuquerque Police
Detective Matthew Vollmer, and Maria Pacheco of T&C
Management, the entity that owns the apartment at issue.
February 11, 2016, Bernalillo County sheriff's deputies
executed a writ of restitution at Mr. Doss's former
apartment. The writ was a court order of eviction,
instructing the deputies to remove Mr. Doss and anyone else
from the apartment. After the eviction process was complete
(i.e. the deputies determined the apartment was unoccupied),
SA Dindinger entered and observed the items in plain view in
the apartment, including ammunition and a cell phone.
Dindinger spoke with Maria Pacheco from T&C Management,
which owns the apartment complex, and asked what would become
of the items in the apartment. Ms. Pacheco said she would be
clearing the apartment out and throwing everything away. She
agreed to provide “any documents found in the
residence, the ammunition and any cellular phones after they
were removed by T&C staff and prior to disposal.”
[Doc. 49-3 at 3]. On February 17, 2016, APD Detective Matthew
Vollmer collected these items from one of Ms. Pacheco's
coworkers. Mr. Doss now moves to suppress the items found in
the apartment, which include suboxone, ammunition, a pistol
magazine, two cell phones, a driver's license for AK,
mail addressed to TK, and other documents including documents
related to stays at one of the hotels allegedly used in this
Doss argues that the writ of restitution only allowed
sheriff's deputies to return the apartment to the owner,
T&C, and that the writ did not allow law enforcement to
conduct a search of the apartment for evidence in an ongoing
criminal investigation. In other words, Doss objects to the
presence of SA Dindinger when the writ of restitution was
executed. However, he cites no support for the proposition
that it was an unlawful search under the Fourth Amendment for
SA Dindinger to accompany the sheriff's deputies to the
apartment after Mr. Doss was evicted.
Doss's main argument is that, even though he was evicted,
he had a contractual agreement with T&C that they would
hold his property for a period after eviction. Clause 12 of
the Rules of Residency, an addendum to his lease, states the
If we have to put your stuff in storage, there will be a $50
administrative and cleaning charge that will be taken from
the deposit plus (along with all money owed) must be paid
prior to obtaining belongings from storage. Stored items will
only be held for 30 days and then they will be disposed of.
[Doc. 49-4 at 16]. The government argues that (1) Mr. Doss
has no standing to challenge the removal of these items
because he was lawfully evicted from the apartment, [Doc. 77
at 3], (2) Mr. Doss does not have a reasonable expectation of
privacy in the items because he abandoned them, id.
at 5, and (3) Mr. Doss's lease agreement with T&C has
no bearing on the constitutional question of his reasonable
expectation of privacy in the apartment, id. at 6.
rental period expires or is terminated, control reverts to
the owner or manager and the former tenant no longer has an
expectation of privacy. See, e.g., United States v.
Croft, 429 F.2d 884 (10th Cir. 1970); U.S. v.
Banks, 262 Fed.Appx. 900, 905 (10th Cir. 2008)
(“Where an occupant of a hotel room is evicted, he or
she no longer has a right to privacy in the room, and there
can be no invasion thereof.”); U.S. v.
Gutierrez-Casada, 553 F.Supp.2d 1259, 1271 (D. Kan.
2008) (citing other circuits holding “that persons
‘wrongfully present' lack standing, or a reasonable
expectation of privacy in the premises”). Because Mr.
Doss does not dispute that he was lawfully evicted from his
apartment, he no longer had a reasonable expectation of
privacy under the Fourth Amendment.
regarding the issue of whether T&C violated the terms of
its lease agreement with Mr. Doss, the defense has not shown
that this alleged breach of contract involved government
action. Private actors' conduct is generally not
reviewable under the Fourth Amendment. See United States
v. Jacobsen, 466 U.S. 109, 113 (1984) (stating that the
Fourth Amendment “is wholly inapplicable to a search or
seizure, even an unreasonable one, effected by a private
individual not acting as an agent of the government or with
the participation or knowledge of any governmental
official”). The less that law enforcement is involved
in the search, the less likely that a court will find the
search to be governed by the Fourth Amendment.
search by a private citizen becomes a governmental search
implicating the Fourth Amendment “if the government
coerces, dominates or directs the actions of a private
person” conducting the search or seizure. U.S. v.
Smythe, 84 F.3d 1240, 1242 (10th Cir. 1996) (citing
Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir.
1989)). This is because “government agents may not
circumvent the Fourth Amendment by acting through private
citizens.” Id. at 1243. The Tenth Circuit
stated that there are two important factors to consider in
determining whether a private person becomes an agent or
instrumentality of the police for purposes of the Fourth
Amendment: whether “the government knew of and
acquiesced in the intrusive conduct, and ... [whether] the
party performing the search intended to assist law
enforcement efforts or to further his own ends.”
Smythe, 84 F.3d at 1242 (citing Pleasant,
876 F.2d at 797; United States v. Miller, 688 F.2d
652, 657 (9th Cir. 1982)). Knowledge and acquiescence exist
when a government agent affirmatively encourages, initiates
or instigate the private action. Id. at 1243 (citing
Pleasant, 876 F.2d at 797-98). A court must look to
the totality of the circumstances to determine whether
“the government coerces, dominates or directs the
actions of a private person.” Id. (citations
omitted). “In some affirmative way, the police must
instigate, orchestrate, encourage or exceed the scope of the
private search to trigger application of the Fourth
Amendment.” Id. (citing United States v.
Lambert, 771 F.2d 83, 89 (6th Cir. 1985)).
SA Dindinger asked Ms. Pacheco what would become of the items
in the apartment and asked to retrieve them once removed from
the apartment. He initiated this communication with T&C
on the basis that Mr. Doss had been lawfully evicted, and his
testimony does not indicate awareness of any obligations
under the lease. Therefore, the Court finds that neither SA
Dindinger nor Detective Vollmer encouraged, initiated or
instigated any potential lease violation by T&C.
Accordingly, Mr. Doss has not identified a government action
in violation of his Fourth Amendment rights.
IS THEREFORE ORDERED that Mr. Doss's Motion to