In the Court of Appeals of Iowa s9

IN THE COURT OF APPEALS OF IOWA

No. 3-538 / 02-1801

Filed January 28, 2004

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TIGHE FRANCIS SEFCIK,

Defendant-Appellant.

Appeal from the Iowa District Court for Story County, Thomas R. Hronek (suppression), and Steven Van Marel (trial and sentencing), District Associate Judges.

Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Stephen Holmes, County Attorney, and Sarah Livingston, Assistant County Attorney, for appellee.

Heard by Huitink, P.J., and Zimmer and Miller, J.J.

MILLER, J.

Tighe Francis Sefcik appeals his conviction, following a stipulated bench trial on the minutes of evidence, for possession of cocaine in violation of Iowa Code section 125.401(5) (2001). He contends the court erred in denying his motion to suppress evidence obtained through an illegal search and seizure. We reverse the trial court’s ruling on the motion to suppress and remand for further proceedings.

I. BACKGROUND FACTS AND PROCEEDINGS.

On April 6, 2002, Tighe Sefcik went to his friend’s apartment. Sefcik had been a social guest at his friend’s home on numerous occasions, was so at the time of the incident in question, and had general authority to enter the residence at all times. On the same date, Ames police officers went to the residence to investigate a complaint of a loud party. Two officers testified at a suppression hearing that one of the residents of the apartment, Lucas Lasche, gave them permission to enter the home and go to the basement to speak with other guests. In the basement the officers observed Sefcik using cocaine.

The State filed a trial information on April 26, 2002 charging Sefcik with possession of a controlled substance in violation of Iowa Code section 124.401(5) (2001). Sefcik filed a motion to suppress all items seized during the search, contending the warrantless search violated his right to be free from unreasonable searches and seizures as guaranteed by the state and federal constitutions.

Lasche testified at the motion to suppress and denied giving the officers permission to enter. He stated that he was in the basement playing darts and first saw the officers when they came down the basement stairs. Lasche testified that Sefcik had been a social guest at his apartment on numerous previous occasions, once or twice a week, and had general authority to enter the residence as a social guest at all times even when no one was home. Josh Schulze also testified at the suppression hearing. He stated that both he and Sefcik are often social guests at Lasche’s residence and were both present at Lasche’s during the incident in question. Schulze testified that Lasche did not give the officers consent to search the residence and that the officers entered without knocking.

In addressing Sefcik’s motion to suppress, the court noted that the issue of whether the officers received consent to enter the residence was in “substantial dispute” and that there was an additional dispute as to whether the officers received continuing consent from Lasche to go the basement. However, the court did not make any factual findings as to whether the officers actually had consent to enter the residence, or to thereafter go to the basement, because the court did not reach the issue of the reasonableness of the search. Instead, the court acknowledged that Sefcik was admitted to the residence on April 6 as a social guest but concluded that because none of the owners or lessees of the property were aware of Sefcik’s illegal drug use that night his status as a social guest changed to that of a mere trespasser, and thus he had no reasonable expectation of privacy concerning the drug activity in which he was engaged. Accordingly, the court found Sefcik had no standing to raise an objection to the search and seizure supporting the State’s prosecution.[1] Sefcik was found guilty as charged and sentenced to one year with all but seven days suspended.

Sefcik appeals contending the court erred in finding he was a mere trespasser in Lasche’s home and thus had no standing to challenge the search and seizure. He argues all of the items seized should be suppressed because they were obtained in violation of his constitutional right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution and Article I, section 8 of the Iowa Constitution.[2]

II. STANDARD OF REVIEW.

We review claimed violations of constitutional rights under the Fourth Amendment de novo in light of the totality of the circumstances. State v. Ortiz, 618 N.W.2d 556, 558-59 (Iowa 2000). In our review of the district court’s ruling on a motion to suppress we consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996).

III. MERITS.

The Fourth Amendment to the United States Constitution secures the right of the people to be free from unreasonable governmental searches and seizures. U.S. Const. amend. IV.[3] The Fourth Amendment, however, is not a general societal protection, but rather “a personal right that must be invoked by an individual.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373, 379 (1998), quoted in State v. Grant, 614 N.W.2d 848, 852 (Iowa Ct. App. 2000). The capacity to invoke the protections of the Fourth Amendment depends “upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 401 (1978); Grant, 614 N.W.2d at 852. It is incumbent on the defendant to show he had a legitimate expectation of privacy in order to litigate the lawfulness of the government search. Grant, 614 N.W.2d at 852-53 (citing State v. Osborn, 200 N.W.2d 798, 803 (Iowa 1972)). The party challenging the search must establish that his or her own Fourth Amendment rights have been violated, not the rights of someone else such as, in this case, the tenants. Ortiz, 618 N.W.2d at 559 (citing Rakas, 439 U.S. at 131 & n. 1, 99 S. Ct. at 424 & n. 1, 58 L. Ed. 2d at 393 & n. 1).

“The determination of whether a person has a legitimate expectation of privacy with respect to a certain area is made on a case-by-case basis, considering the unique facts of each particular situation.” State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998). Additionally, the expectation of privacy must be one that society considers reasonable, an issue that involves reference to property law or to understandings that are recognized and permitted by society. Ortiz, 618 N.W.2d at 559. “The application of [the rule that the reasonableness of a person’s expectation of privacy in a place depends on a meaningful connection with the place] involves consideration of the kind of place in which the individual claims the privacy interest and what expectations of privacy are traditional and well recognized.” Carter, 525 U.S. at 101, 119 S. Ct. at 479, 142 L. Ed. 2d at 387 (Kennedy, J., concurring). A defendant challenging a search must show (1) a subjective expectation of privacy and (2) that this expectation of privacy was reasonable in light of long-standing social customs that serve functions recognized as valuable by society. Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 94 (1990), cited in Ortiz, 618 N.W.2d at 559.

In Carter Justice Kennedy provided the fifth vote necessary for a majority, writing in a special concurrence that, “as a general rule, social guests will have an expectation of privacy in their host’s home.” Carter, 525 U.S. at 102, 119 S. Ct. at 479, 142 L. Ed. 2d at 387 (Kennedy, J., concurring), quoted in Ortiz, 618 N.W.2d at 559. Kennedy stated the majority’s opinion was consistent with his view that “almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.” Carter, 525 U.S. at 99, 119 S. Ct. at 478, 142 L. Ed. 2d at 386. The Court in Carter discussed three factors bearing on its determination that the defendants in that case were merely “legitimately on the premises” and thus did not in fact have a reasonable expectation of privacy. Id. at 91, 119 S. Ct. at 474, 142 L. Ed. 2d at 381; Ortiz, 618 N.W.2d at 560. Those factors are: (1) the purely commercial nature of the transaction, (2) the defendants’ relatively short period of time on the premises, and (3) the lack of any previous connection between the defendants and the occupant of the apartment. Id.

In the case at hand the district court determined that, without question, Sefcik was originally admitted to the property in question as a social guest and as such had some legitimate expectation of privacy in the residence. However, the court determined, in effect, that his possession and use of cocaine without the knowledge, permission, or authority of the occupants stripped him of his status as a social guest and voided any expectation of privacy in the residence.

Although the court mentioned the Carter and Ortiz opinions, it did not address or discuss any of the three factors discussed in those cases which have a bearing on whether a social guest has a reasonable expectation of privacy. Instead, the court focused on the fact that the residents had not given Sefcik permission or authority to use cocaine in the apartment. The court determined there was no evidence from which it could conclude that Sefcik’s “permitted use of the property extended to the illegal activity of the possession or use of cocaine” and thus concluded “[t]here are substantial reasons why the Court should not extend such protections to this Defendant without proof of such permission or authority.” The court went on to support its conclusion with various property law principles, including reference to trespass law, and emphasized the possible adverse effects illegal activities, like those of Sefcik’s here, could have
on the personal property rights of an owner or lessee.[4] We do not interpret Carter and Ortiz in the same way the district court apparently did here and therefore believe the court’s analysis of whether Sefcik had a reasonable expectation of privacy is flawed.

Comparing the facts of this case to the facts in both Carter and Ortiz we conclude Sefcik did have a reasonable expectation of privacy while a social guest at his friend’s apartment. First, we can find no evidence whatsoever in the record that there was any commercial aspect to the gathering at Lasche’s apartment. It appears to have been a purely social gathering of college students (a.k.a. an after-hours party). There is no evidence of the types of activities found in Carter and Ortiz, where the defendants were using the premises in question as processing stations to prepare and sell drugs. Carter, 525 U.S. at 86, 119 S. Ct. at 471, 142 L. Ed. 2d at 378; Ortiz, 618 N.W.2d at 560-61. Here, unlike in Ortiz, the evidence shows that the purpose of the gathering was social. There is no evidence of any preparation or sale of drugs, and any drug use was merely incidental to the social nature of the gathering. Accordingly, the first factor bearing on Sefcik’s expectation of privacy weighs in favor of finding that he did in fact have a reasonable expectation of privacy while in the residence in question.

Second, in dealing with the third factor the plurality opinion in Carter emphasized the lack of a social relationship between the defendants and the premises searched in finding that the defendants there were not social guests and thus did not have a reasonable expectation of privacy. Carter, 525 U.S. at 90, 119 S. Ct. at 473, 142 L. Ed. 2d at 380; Ortiz, 618 N.W.2d at 560. The defendants in Carter lived in Chicago and had come to the apartment in Minnesota for the sole purpose of preparing and bagging cocaine for sale, they had never been in the apartment before, and were only there for about two and a half hours. Carter, 525 U.S. at 86, 119 S. Ct. at 471, 142 L. Ed. 2d at 378; Ortiz, 618 N.W.2d at 560. These facts, relied upon by the Supreme Court in Carter to determine the defendants were not social guests but merely present in the home, are readily distinguishable from the facts in the present case.

It is undisputed that Sefcik had both a significant previous connection with the premises searched and a social relationship with its residents. Lasche testified that Sefcik had been a social guest at his apartment on numerous previous occasions, once or twice a week, and had general authority to enter the residence as a social guest at all times, even when no one was home. Accordingly, we conclude that unlike in Carter and Ortiz there was in fact a substantial previous connection here between the defendant, the apartment, and the tenants of the apartment. Thus, the third factor bearing on the reasonable expectation of privacy also heavily ponderates in favor of a finding that Sefcik’s expectation of privacy in Lasche’s basement was reasonable.

Finally, with regard to the second factor listed above to be weighed in making the reasonableness determination, it is true that on this particular instance Sefcik had only been at Lasche’s apartment for approximately an hour and a half, which is a shorter period of time than the defendant in Carter had been on the premises. However, the Supreme Court did not suggest in Carter that the amount of time the defendant was on the premises on one particular occasion would be dispositive. Ortiz, 618 N.W.2d at 561. Instead, as set forth above, the Court in Carter placed much more emphasis on the commercial nature of the transaction and the noticeable lack of any social relationship between the defendant, the premises searched, and the residents of the premises. Therefore, we cannot conclude that the mere fact Sefcik was at the apartment for only an hour and a half on this particular occasion is enough to find he was not a social guest or that he did not have a reasonable expectation of privacy in the residence. We believe the defendant’s relationship with the premises and with the lessee of the premises must be looked at in conjunction with the length of time he was on the premises on this particular occasion in determining the reasonableness of his expectation of privacy.