UNITED STATES of America, Appellant, v. James Ray MENDOZA, Appellee, 281 F.3d 712

GAITAN, District Judge. This case presents the issues of whether a resident of a duplex possesses a legitimate privacy interest in the common entry vestibule, and whether law enforcement agents, who possess a warrant and announce their presence and purpose, must knock when the door to the dwelling has been removed from its hinges. Appellant, the United States, appeals from the District Court ruling which suppressed the evidence retrieved from James Mendoza’s home on the grounds that the search was unreasonable.

Several days prior to June .5, 2000, the Minneapolis Police Department received a tip from a confidential reliable informant that Mendoza possessed a pound of heroin at his home, the lower unit, 1021 19th Avenue Northeast, Minneapolis, Minnesota. Mendoza apparently showed the heroin to the informant when he took a padlocked duffle bag from under his bed and opened it to reveal the drugs. Officers checked with the utility company and learned that the utilities to the lower unit of the duplex were in Mendoza’s name.

In addition, the officers obtained a photograph of Mendoza from prior arrests and showed it to the informant, who confirmed Mendoza was the individual in possession of the heroin. The officers sought and obtained a warrant based upon the tip. Mendoza’s residence is a multifaraily dwelling (a “duplex”) with an upper and lower unit. There is one single main door located on the right front of the home. The door has peep hole, small knocker and a lock, which was not latched at the time of entry. To the left of the door there are two mailboxes.

The warrant indicated in three places that the dwelling contained two residences, a lower and an upper unit, and that Mendoza was located in the lower unit. On June 5, 2000, at around 6:30 p.m., approximately six to eight police officers arrived at Mendoza’s home. The officers were wearing raid gear which consisted of vests and jackets with “Police” on the front. An adult and Mendoza’s son, who was thirteen, and his son’s friend, fourteen, among others, were talking in the front yard. The officers approached the house and were shouting “Police!”, as were the individuals in the yard.

The officers entered the common door into an open vestibule while shouting “Police!” Upon entering the vestibule the officers saw Mendoza’s doorway to the left and stairs directly in front of them, which led to the upper unit. Mendoza’s paramour, Ms. Brandon, resided in the upper unit. Mendoza’s door was off the hinges completely and the apartment was open to the vestibule. The officers then shouted “Police! Warrant!” and entered Mendoza’s residence where they conducted a protective sweep throughout the unit. They found Mendoza repairing the bathroom and brought him to the living room.

Mendoza was charged by indictment on June 20, 2000. The original two-count indictment alleged the defendant possessed methamphetamine and heroin with the intent to distribute, in violation of 21 U.S.C. § 841. A superseding indictment was filed by the United States on September 7, 2000 to conform to the charges of the Supreme Court decision Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

This two-count indictment alleged that Mendoza possessed methamphetamine in excess of 50 grams with the intent to distribute 100 grams of heroin, both in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On August 11, 2000, Mendoza moved the court for an order suppressing the evidence obtained in the search and seizure of the his home. After a hearing, the United States Magistrate Judge, Jonathan Lebe-doff, issued a report and recommendation that advised the suppression of the evidence seized as a result of the search of defendant’s apartment.

The report and recommendation concluded that the officers should have knocked on the front door of the duplex and that once the officers entered the common vestibule area and found the door off the hinges, they should have knocked a second time on the lower unit’s door frame. The District Court adopted the findings of the report and recommendation and ordered the suppression of the evidence. I. Discussion The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const, amend. IV. When examining if a search is reasonable, courts consider “all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, Mendoza asserts two bases for suppressing the evidence adduced as a result of the search: (1) that the government violated his Fourth Amendment rights when they entered the main door of the duplex without knocking; and (2) the officers, once inside the duplex vestibule, should have knocked on the door jamb before entering his front door. A.

The First Door Mendoza maintains he had a constitutionally protected interest of privacy in the first door, which opened into the duplex vestibule. He asserts, moreover, this door was his front door and that the vestibule constituted his “home” for purposes of Fourth Amendment analysis. Accordingly, he reasons, the officers should have knocked on that door and announced their presence and purpose there, instead of entering that door and approaching the interior doorway.

The threshold inquiry is whether Mendoza had a legitimate expectation of privacy in the common area entryway of the duplex, which would have required the officers to knock and announce their presence. “[T]he person challenging the search has the burden of showing both a subjective expectation of privacy and that the expectation is objectively reasonable; that is, one that society is willing to accept.” United States v. McCaster, 193 F.3d 930, 933 (8th Cir.1999); accord Minnesota v.

Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing the reasonable expectation of privacy in a dwelling for an overnight guest); Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Several factors have been identified as relevant to this showing: “whether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises.” Id. (citations omitted).

In applying this test, we have repeatedly held that tenants of multifamily dwellings have no legitimate expectation of privacy in common or shared areas. See McCaster, 193 F.3d 930 (defendant did not have a legitimate expectation of privacy in a duplex hallway’s closet); United States v. McGrane, 746 F.2d 632 (8th Cir.1999) (no legitimate expectation of privacy in a basement storage locker in a multifamily dwelling, to which other residents had access); United States v. Eisler, 567 F.2d 814 (8th Cir.1977) (no legitimate expectation of privacy in a conversation that took place in an apartment building hallway).

Mendoza urges this case is distinguishable from our prior decisions because he shared the duplex with “his children, girlfriend and her children.” Specifically, he contends “the occupants of the duplex treated the upper unit, the lower unit, and the vestibule as communal space.” In finding that Mendoza had a legitimate expectation of privacy, the District Court focused only upon his subjective expectation and not whether that expectation was objectively reasonable. To amount to a protectable expectation of privacy, however, the expectation must be tested for reasonableness.

The factors applied to examine if a subjective expectation is objectively reasonable relate to both property interests, and whether the individual claiming the right took measures to protect those interests. In the instant case, Mendoza did nothing that would lead the officers to believe he had a protectable interest in the common area of his duplex. He made no efforts to secure the outer door. Moreover, because the door was not latched and there remained two mailboxes to its left, there was no signal to the officers that knocking on the outer door would have been necessary.

As for any property interest in the common entry door and vestibule, Mendoza had none which would mandate protection. For example, it is doubtful the landlord would have allowed Mendoza to sublet the vestibule. It is also unlikely that Mendoza could have excluded individuals from Ms. Brandon’s unit. The only support he provides that he had an interest in the upper unit is that his young daughter ran up to it, and that his door was off its hinges. It was the District Court that surmised the missing door was to facilitate free movement, and that extrapolation creates more questions than answers. What if Ms.

Brandon grew tired of Mendoza, could she have excluded him from her unit? What if a delivery person wanted to take a package to Ms. Brandon’s door-could Mendoza have barred his entry? What about Ms. Brandon’s door-was it completely off the hinges-did she want to facilitate free movement? What may be even more disconcerting, however, is Mendoza’s contradiction within his brief.

After asserting in his statement of facts that “the door to the lower portion of the duplex was off the hinges due to repairs ...,” he defends his subjective belief of one unified living space by representing that the door was off its hinges to facilitate free movement, thus adding a tint of disingenuousness to his argument. B. The Second Door We must now examine whether the officers were required to knock before entering Mendoza’s unit, even though there was no door. The common law requirement that police officers knock and announce their presence before entering a dwelling, plays a

part in Fourth Amendment reasonableness determinations. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); see also Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958) (the common law principle of “knock and announce” is “embedded in Anglo-American law”).

There are exceptions to the knock and announce rule where police “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 643 (citing Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), and United States v. Weeks, 160 F.3d 1210, 1213 (8th Cir.1998)).

Here, the government has not charged that any exigent circumstances existed, nor has it argued that knocking would have been dangerous or would have lead to the destruction of evidence. This leaves the futility exception. Although this Court has not squarely addressed the issue of whether knocking is required when the door is open, or in this case, where there is no door, most circuits courts deciding the issue have concluded when the door is open, the rule is vitiated. See United States v.

Johns, 466 F.2d 1364 (5th Cir.1972) (FBI agents, wearing “FBI” armbands, were not required to knock or announce upon entry of an open door when they witnessed an individual emerge from the door, turn around and go back in the building where they suspected illegal gambling); United States v. Lopez, 475 F.2d 537 (7th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 89, 38 L.Ed.2d 74 (1973) (Federal Agents entry into the open door of a motel room after probable cause was established and as defendants opened the door to leave, did not require knocking) United States v.

Vargas, 436 F.2d 1280 (9th Cir.1971) (“the thrust of § 3109 ... is aimed at the closed or locked door.”); United States v. Remigio, 767 F.2d 730 (10th Cir.1985) (finding no violation of the knock and announce rule when officers enter an open door); United States v. Valenzuela, 596 F.2d 1361 (9th Cir.1979) (same). In making the determination of whether the Fourth Amendment has been violated by a failure to knock and announce, we must remember reasonableness is our polestar.

Underlying the knock and announce requirement is notice, and here, the officers announced their presence and were conspicuously dressed in police riot gear. Further, the inhabitants who were outside were shouting “Police!” Given the twin auditory function of announcing (“Police! Warrant!”) and knocking (“Bang-bang-bang”) it belies common sense to think officers should be forced to comply with formalistic rules when the circumstances direct otherwise. See Richards v.

Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (“the flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.”) (internal quotations and citations omitted). In fact, it is difficult to imagine a case where knocking could be more futile than the one at hand — where the door was not just open, but off its hinges. In United States v.

Moreno, 217 F.3d 592 (8th Cir.2000) we looked at the purposes of the knock and announce rule which include: 1) the potential for violence; 2) preventing unnecessary destruction of private property; and 3) showing respect for the individual’s privacy interests. Id. at 594 (citing United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994)). When the officers entered Mendoza’s they were acting consistently with these policies. Because they announced their presence and stated their purpose, the potential for violence was diminished.

In addition, there was no door to break down, and as such, there was no unnecessary destruction of private property. Finally, the officers made a pre-entry announcement, thus giving Mendoza notice of their presence. In short, the underlying reasons for the knock and announce rule were met, and the entry was reasonable. Accordingly, for the foregoing reasons, we reverse the judgment of the District Court. .

If the Court were to be persuaded by Mendoza's subjective expectation argument, it would mean that not only would the officers have been able to search Mendoza’s unit, but they also would have been able to search Ms. Brandon’s residence. We are not prepared to waive Ms. Brandon’s rights on account of her boyfriend's subjective belief. .

Section 3109, "the knock and announce" statute governs when there is “significant federal involvement” and provides: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in execution of the warrant. 18 U.S.C. § 3109; Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); see United States v. Murphy, 69 F.3d 237, 242 (8th Cir.1995).

This statute codifies the common law rule. Therefore, cases construing § 3109 are relevant to our analysis, even though only state officers executed the warrant.