A judge today dismissed a man's request to toss a gun found without a warrant in a Somerville apartment as evidence against him, saying he lost his privacy rights to the contents of the box the gun was in after the apartment's occupant kicked him out.
The gun is a key piece of evidence in the federal government's case against Howard John as a felon in possession of a firearm.
According to court documents, Somerville police seized and opened a box with a gun in it after his ex-girlfriend called 911 to report he had shown up unexpectedly to get his stuff, but wound up attacking her in a fight that ended with both him and the woman's six-year-old son sliced with a knife, with some of John's blood winding up in the hallway outside the apartment on Nov. 10, 2018.
After police arrived, the woman gave them permission to open the box, which John had allegedly stashed under an armoire during their relationship, but which she said she had not known about until he arrived for his stuff and got it out.
It would be illegal under federal law for John to own the gun, even aside from the fact it was reported stolen, because of a 2002 conviction for assault and battery in South Carolina. The US Attorney's office charged him with the federal offense in 2019.
John's attorney filed a motion to have the gun - and gun parts found in his car - tossed as evidence, because police did not have a warrant to open the box and that while it was in his ex's apartment, he still had privacy rights to the closed container under the Fourth Amendment; that he never consented to have the box open and that his ex had no right to give police permission to open it.
In her ruling today, US District Court Judge Indira Talwani said those rights disappeared when he was kicked out of the apartment some time before his arrest.
This court finds the privacy interest Defendant claims in the case is not objectively reasonable because his presence in the apartment at or near the time of the search was not legitimate. United States v. Lnu, 544 F.3d 361, 365-66(1st Cir. 2008). Defendant entered an apartment he had no permission to be in and assaulted the apartment’s occupant. ... Even if Defendant "subjectively did not intend to abandon" his case, his expectation that he retained a privacy interest in it at the time of the search was "objectively unreasonable and does not allow the [D]efendant to challenge the search on Fourth Amendment grounds." ...
There is an insufficient record to show when Defendant stopped living in the apartment, but when he returned to [the ex]’s apartment that night he was not a "welcomed guest." Battle, 637 F.3d at 49; see also United States v. McCarthy, 77 F.3d 522, 528 (1st Cir. 1996) (defendant had no reasonable expectation of privacy in open suitcase after he was told he had to leave the trailer). Although Defendant argues to the contrary, he provides no authority for the proposition that a person retains a privacy expectation in something left behind in a place they are no longer permitted to be.