                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0583n.06

                                           No. 07-4060                                 FILED
                                                                                    Sep 02, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )
                                                         )   On Appeal from the United States
CHARLES KIMBER,                                          )   District Court for the Southern
                                                         )   District of Ohio
       Defendant-Appellant.                              )
                                                         )
                                                         )


Before: MARTIN, BOGGS, and COLE, Circuit Judges.

       PER CURIAM. Defendant Charles Kimber conditionally pleaded guilty to being a felon

in possession of a firearm after the district court denied his motion to suppress evidence of a

handgun, which Kimber claims was seized in violation of the Fourth Amendment. We find that the

arresting officers’ entry into the apartment building where Kimber was found with the handgun

violated the Fourth Amendment. Accordingly, we reverse the district court’s ruling on the

suppression motion, vacate Kimber’s conditional guilty plea and sentence, and remand.

                                        BACKGROUND

A. Underlying Events

       On November 11, 2006, between 11 p.m. and midnight, approximately six City of Cincinnati

police officers, acting without a warrant, entered the Alms Hill Apartments at 2525 Victory Parkway

in Cincinnati, Ohio. The Alms Hill Apartments is a former hotel that has been converted into a
No. 07-4060
United States v. Kimber

residential apartment building. The officers were members of the District 4 Violent Crime Squad,

which is charged with investigating drug complaints, drug activity, shootings, and robberies. They

had no reason to believe that any specific criminal activity was occurring at the Alms Hill

Apartments that evening, other than their generalized knowledge that the building was a crime “hot

spot.”1 Rather, on account of inclement weather, they had decided to visit the building in lieu of

patrolling the city streets.

        The officers entered through the building’s back door, which featured a keycard-based lock

mechanism; as they did not have a keycard, they forced the door open. Upon entering, the officers

proceeded through the rear vestibule to the lobby. At some point thereafter, Kimber entered the

building through the back door and approached the lobby. When Kimber saw the officers, he

appeared surprised and attempted to turn and walk away. As he did so, one of the officers saw the

handle of a handgun protruding from Kimber’s jacket pocket. The officers searched Kimber and

found a loaded Cobra .380-caliber pistol on his person. They then placed him under arrest for

carrying a concealed weapon; Kimber told the officers that he was a convicted felon.2

        Subsequently, the officers drafted sworn criminal complaints in Hamilton County Municipal

Court. Thereafter, the prosecution was referred to federal authorities, and Kimber was charged in


        1
          One of the officers testified at the suppression hearing that he had been on the premises
about fifty times and had made arrests there for drugs, prostitution, firearms possession, and
robberies.
        2
          Kimber also informed the officers that he had a small bag of crack cocaine on his person,
which the officers located. There is some inconsistency in the record as to whether Kimber told the
officers about the crack before or after he was Mirandized. This is immaterial for purposes of the
present appeal, however, as the federal indictment here does not include any drug offenses.

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No. 07-4060
United States v. Kimber

a two-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g) and being a felon in possession of a firearm in a school zone in violation of 18 U.S.C.

§ 922(q)(2)(a). Kimber filed this motion to suppress.

B. Evidence Presented at the Suppression Hearing

       The district court held hearings on the motion on April 26, 2007 and May 1, 2007. The

government offered the testimony of two of the arresting officers, Kenneth Grubbs and Brian

Stewart, as well as certain documentary evidence described below. Kimber did not testify.

1. Consent to Enter

       Grubbs testified that at the time of the arrest in November 2006, the Alms Hill Apartments

were owned by Downtown Property Management (“DPM”), a private entity, but acknowledged that

he was “aware that the building ha[d] changed ownership three times since 2005.” Grubbs explained

that when property owners “have problems with people trespassing on their property,” they place

what is known as a “trespass letter” on file with the Cincinnati Police Department authorizing the

police to “act as their agent[s] whenever [they] come onto their property.” The government placed

into evidence a trespass letter signed by the manager of DPM reading, in relevant part:

       I, Kera Raminemi, being the owner or person in control of the premises located at
       2525 Victory Parkway in Cincinnati, Hamilton County, Ohio, do hereby name all
       sworn members of the Police Department as my agents for the limited purpose of
       enforcing criminal trespassing laws on the above property, which includes the land[,]
       all buildings and structures, walkways and parking lots.

       I agree to have prominently displayed on my property, signs notifying persons of my
       restrictions imposed upon entry onto my property. I hereby authorize any member
       of the Police Department to warn a person found to be in violation of the sign to
       leave the property. Any person who ignores said warning, or returns to the property


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No. 07-4060
United States v. Kimber

       without proper permission, shall be subject to arrest by members of the Police Dept.
       with my permission and full support. . . .3

       This authorization shall remain in effect until a written notice of revocation is
       provided.

Grubbs testified that this letter “reflect[s] the most accurate correspondence from [DPM] to the

Cincinnati Police Department.” However, as the court noted, the letter was dated January 31, 2007

– over two months after Kimber’s arrest.

       On cross-examination, Grubbs testified as follows:

       Q. Ha[d] there been any previous letters?

       A. From what I recall, yes, there ha[d] been. I personally don’t keep them in my
       possession. We have – well, they have a cop team, they call them cop team officers,
       who basically keep these letters on file in their office.

       Q. But you would not know if you had permission to be on the property on
       November 11th?

       A. I do. I am aware that I knew that we had permission to be on that property that
       particular day.

       Q. But this is not evidenced by this letter?

       A. By the date of this letter, it does not go back to the November date.

       Q. Okay. Now –

       THE COURT: Let me ask a question. Maybe I’m anticipating. Was there a letter that
       covered . . . November 11th, 2006?


       3
           There is no evidence in the record that any such sign was posted at the Alms Hill
Apartments. Kimber argues that the posting of such a sign was a condition precedent to the grant
of permission to enter the property, and that the alleged failure to post a sign thus rendered any
trespass letter inoperative. He cites no legal authority for this argument, however, and in any event,
he did not make it before the district court, so it is waived.

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No. 07-4060
United States v. Kimber


       THE WITNESS: I am aware that, yes, there was a letter on file at the time, yes.

       THE COURT: And where is that letter? Why is this letter being offered then?
       Where’s the letter that covers the period?

       THE WITNESS: Well, I do know that periodically what our cop team officers do is
       they will go back to properties and businesses and basically renew a letter. I know
       that there have been problems, I’m aware of problems that have occurred over at the
       Hamilton County Courthouse where if a letter is older, that judges have not liked the
       letter being very old. They want an up-to-date letter.

       THE COURT: Well, we don’t have an up-to-date letter in this case, do we?

       THE WITNESS: Well, this letter – yes, it is dated after the date of the incident.

       THE COURT: So it is your word – are you aware, personally, that there was a letter
       in the file that covered this date of November 11th, ’06?

       THE WITNESS: I am aware of a letter. I can give you a little more explanation, if
       you would like. I’m also aware that security officers who are in charge of the
       property – the property has its own private security. I’ve been personally asked on
       numerous occasions within the last two years, I can go back, of them asking us to
       please come to the property, and they have a problem with trespassers.4

Stewart, meanwhile, testified as follows:

       A. The riffraff coming into the building was [a] problem, so we had a trespassing
       letter that was signed by the representative of the building to give us access to come
       in and arrest anyone who was there unlawfully.

       Q. Okay. Now, do you know if there was such a letter giving you permission to be
       there on file on November 11th, 2006?

       A. Yes, yes.



       4
          There is no evidence in the record that the private security company tasked with patrolling
the building gave the officers open-ended permission to enter the property at will, or that the security
company had the authority to grant such permission.

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No. 07-4060
United States v. Kimber

       Q. Had you had any conversations with the private security element that also worked
       at that location?

       A. Yes.

       Q. Had they ever said anything to you about your presence at that location?

       A. That it was needed and they went on and gave us other information about other
       apartments in the building that were a problem.

       Subsequent to the hearing, but before the motion was decided, the government entered into

the record a second trespass letter with materially identical operative language. This letter was dated

April 15, 2004 – approximately two years and seven months before Kimber’s arrest. The letter

identified the relevant property as the Alms Hill Apartments and was signed by “Candice Ratcliff.”

It did not mention DPM and listed a different contact address and telephone number from the

trespass letter from DPM.

2. Manner of Entry

       Regarding the officers’ manner of entry, Grubbs testified:

       Q. And can you tell Your Honor how [the back door of the Alms Hill Apartments
       through which the officers entered] can be accessed?

       A. At the particular date and time, I would say about a week, a week prior to this
       particular night or so, myself and officers doing basically the same thing, trying to
       investigate the trespass complaints and complaints of drug activity, we were actually
       shown by an individual. We were trying to get in the door. It was locked and an
       individual came up and said here’s how you get in the door. And that individual
       turned and kicked the door at the bottom and then pulled the door open.

       Q. And were you able to access it without any kind of security card?

       A. Yes.



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No. 07-4060
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Meanwhile, Stewart testified that “[t]he door . . . is supposed to be secure and you’re supposed to

use a pass card to gain entry through that door, [but f]or some odd reason, you can yank the door and

it will open.”

3. Kimber’s Residence

        Kimber entered into evidence sworn state-court complaints signed by Stewart that describe

Kimber as residing at “2525 Victory Pkwy Apt 1008” – the address of the Alms Hill Apartments –

as well as an Ohio non-driver identification card issued on June 12, 2006 identifying Kimber’s

address as “2525 Victory Pkwy.”5

        Grubbs testified that he himself never inquired as to Kimber’s residence, but that it “was . . .

determined” through unspecified means that Kimber did not live at the Alms Hill Apartments,

although his aunt did. Meanwhile, Stewart testified that at the scene, “Mr. Kimber, himself,

verbally” gave 2525 Victory Parkway as his address, although Stewart said that Kimber did not give

this information to him at that time; rather, he “th[ought Kimber] gave it to Officer Grubbs.” Stewart

further testified that during an interview at the station-house, Kimber said that “he goes in and out

of 2525 Victory, but he doesn’t live there.”6




       5
          To obtain an Ohio non-driver identification card, an applicant must present documents
sufficient to establish the person’s “resident street address.” Ohio Department of Public Safety -
Bureau of Motor Vehicles, Acceptable Documents List, http://publicsafety.ohio.gov
/links/bmv2424.pdf (last accessed July 22, 2010).
       6
          While it is not competent “evidence,” Kimber’s sister gave an unsworn statement at
Kimber’s sentencing hearing that he had lived at the Alms Hill Apartments for a year or more and
that she had visited him there often.

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United States v. Kimber

C. District Court Decision

        The district court found the testimony of Grubbs and Stewart with regard to their encounter

with Kimber “highly credible and corroborated.” United States v. Kimber, No. 1:07-CR-00019, 2007

WL 1299266, at *3 (S.D. Ohio May 1, 2007). Accordingly, the court concluded that “as soon as

Stewart saw the gun in plain view, [the officers] . . . immediately had probable cause to make a

weapons arrest.” Id. at *4.

       As for Kimber’s assertion that the officers had no right to enter the Alms Hill Apartments

in the first place, the court concluded: “[t]he [o]fficers were present in a common area at the

premises in the context of a valid trespassing investigation. The Court accepts the testimony that the

location is a crime ‘hot spot,’ and that the [o]fficers’ presence was justified, and indeed welcomed

by the owner of the building.” Ibid. In a footnote, the court elaborated:

       At the May 1, 2007 hearing the government proffered a letter from Alms Hill
       building management, dated April 15, 2004, which shows the [previous] property
       owner authorized Cincinnati Police to enforce trespassing laws on the property. This
       letter, taken together with the more recent letter from the current property owner,
       dated January 31, 2007, and the [o]fficers’ testimony, leaves no doubt that [they
       were] authorized to enter the building on November 11, 2006.

Id. at *4 n.1 (internal citations omitted). The court declined to make a finding as to whether Kimber

was a resident of the Alms Hill Apartments, reasoning that the issue was irrelevant in light of the

court’s finding that the officers were “authorized to enter the building.”

       After his suppression motion was denied, Kimber entered a conditional guilty plea, reserving

the right to appeal the denial of the motion. Following his sentencing to 77 months’ imprisonment

and three years of supervised release, he timely appealed.


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No. 07-4060
United States v. Kimber

                                     STANDARD OF REVIEW

        When reviewing a district court’s decision on a motion to suppress, “we use a mixed standard

of review: we review findings of fact for clear error and conclusions of law de novo.” United States

v. See, 574 F.3d 309, 313 (6th Cir. 2009) (quoting United States v. Davis, 514 F.3d 596, 607 (6th

Cir. 2008)). A factual finding is clearly erroneous “when, although there may be evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). When a

district court has denied a motion to suppress, we “review[] the evidence in the light most likely to

support the district court’s decision.” Ibid. (quoting United States v. Navarro-Camacho, 186 F.3d

701, 705 (6th Cir. 1999) (internal quotation marks omitted)).

        In particular, the district court’s decision turned on the issue of consent.7 With respect to

that issue, “the ultimate question of whether there was consent” is a legal conclusion which we

review de novo, though underlying factual findings and credibility determinations are, as always,

entitled to deference. United States v. Moon, 513 F.3d 527, 536-37 (6th Cir. 2008).


        7
           To be precise, the district court’s opinion did not use the word “consent” at all. However,
we conclude from the statements that the officers’ presence was “authorized” and “welcomed by the
owner of the building” that the district court intended to rely on the consent exception to the Fourth
Amendment’s warrant requirement. Kimber, 2007 WL 1299266, at *4 & n.1. It appears that the
district court may in fact have overstepped the bounds of the consent exception in concluding from,
inter alia, the testimony that “the location is a crime ‘hot spot’” that “the [o]fficers’ presence [in the
building lobby] was justified.” Id. at *4 (emphasis added). There is, of course, no broad exception
to the Fourth Amendment’s warrant requirement for home entries that are “justified,” even by
probable cause that evidence of a crime lies within. See Donovan v. Dewey, 452 U.S. 594, 599 n.6
(1981) (“Absent consent or exigent circumstances, a private home may not be entered to conduct a
search or effect an arrest without a warrant.”). The question before us, therefore, is whether the
record supports the district court’s narrower determination that valid consent was given.

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No. 07-4060
United States v. Kimber

                                            DISCUSSION

A. Consent to Enter

1. Legal Principles

        “To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s

house as unreasonable per se, one ‘jealously and carefully drawn’ exception recognizes the validity

of searches with the voluntary consent of an individual possessing authority.” Georgia v. Randolph,

547 U.S. 103, 109 (2006) (quoting Jones v. United States, 357 U.S. 493, 499 (1958)) (internal

citations omitted). Upon a suppression motion, “[i]t is the government’s burden, by a preponderance

of the evidence, to show through clear and positive testimony that . . . valid and voluntary consent

to the search was obtained.” United States v. Davis, 283 F. App’x 370, 373 (6th Cir. 2008) (quoting

United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)).

        A search pursuant to third-party consent will not violate the Fourth Amendment so long as

the party granting consent had either actual authority or apparent authority to do so. United States

v. Morgan, 435 F.3d 660, 663 (6th Cir. 2006). To possess actual authority, a third party must

“possess[] common authority over or other sufficient relationship to the premises . . . sought to be

inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Apparent authority exists if “the

facts available to the officer[s] at the moment [would] warrant a man of reasonable caution in the

belief that [there was] consent[ from a] party [that] had authority over the premises . . . .” Illinois v.

Rodriguez, 497 U.S. 177, 188 (1990) (internal quotation marks omitted); see also Morgan, 435 F.3d

at 663 (“Apparent authority is judged by an objective standard. . . . [It exists] if the officers



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No. 07-4060
United States v. Kimber

reasonably could conclude from the facts available that the third party had [actual] authority to

consent to the search.” (quoting United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005)).

       The district court’s opinion did not specify whether its conclusion that the officers were

“authorized to enter” was premised on a theory of actual authority or a theory of apparent authority;

nor can we clearly discern as much from context. Since “we are free to affirm . . . on any basis

supported by the record,” Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002), we therefore

examine the record to determine whether it supports a finding of consent under either theory.

2. Actual Authority

       There is no question that the only party with actual authority to consent to the search was

DPM, the building’s contemporaneous owner.8 At the time of the search, the former owner who

signed the 2004 trespass letter no longer “possess[ed] common authority over or other sufficient

relationship to the premises . . . sought to be inspected,” Matlock, 415 U.S. at 171; therefore, the

district court’s reliance on the 2004 letter is inconsistent with a theory of actual authority.

Furthermore, it goes without saying that even a party with authority over the premises at the time of

a search cannot grant consent retroactively. See United States v. Lewis, 231 F.3d 238, 241 (6th Cir.

2000). Accordingly, the 2007 letter from DPM on which the district court relied is not direct

evidence of consent under this theory.



       8
          Although a landlord does not generally possess authority to grant consent to the search of
a tenant’s private living quarters, Chapman v. United States, 365 U.S. 610, 616 (1961), a landlord
obviously may enter and control his building’s common spaces and may thus consent to a search of
such spaces. See United States v. Elliott, 50 F.3d 180, 186 (2d Cir. 1995); United States v. Kelly,
551 F.2d 760, 764 (8th Cir. 1977).

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No. 07-4060
United States v. Kimber

       Thus, any finding of consent under an actual-authority theory must turn on “the [o]fficers’

testimony.” Kimber, 2007 WL 1299266, at *4 n.1. However, neither Grubbs nor Stewart

specifically testified that DPM had given the Cincinnati Police Department consent to enter the

building prior to the arrest. Grubbs testified that he was “aware that [he] knew that [the officers]

had [someone’s] permission to be on that property that particular day” and that “there was a letter

[from someone] on file at the time” of the arrest, without stating that the permission and the letter

of which he spoke came from DPM, as opposed to a previous owner (e.g., the “Candice Ratcliff”

mentioned in the 2004 trespass letter) or another person or entity. Stewart, meanwhile, initially

testified that the officers “had a trespassing letter that was signed by the representative of the

building,” although he did not specify when the police “had [the] letter” of which he spoke; nor did

he make clear whether that letter was from a representative of the building’s owner when Kimber

was arrested, as opposed to a prior owner. When Stewart was subsequently asked whether there was

“a letter giving . . . permission to be there on file on November 11th, 2006” (emphasis added), he

answered “Yes, yes,” but, once again, he did not state that the letter on file at that time was from

DPM.

       Thus, we are faced with a record devoid of any “clear and positive testimony” of timely

consent from a person or entity with actual authority. Davis, 283 F. App’x at 373. On this record,

a finding that the preponderance of the evidence establishes such consent would be clear error.

Accordingly, we cannot affirm on the ground that the officers had consent to enter from a party with

actual authority.



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No. 07-4060
United States v. Kimber

3. Apparent Authority

       We might still affirm if we could conclude that the officers entered the building with the

consent of a party with apparent authority. Whether the officers “had . . . a reasonable basis to

conclude that a third party had authority to consent to a search [is a] question[] of law and we

therefore review [it] de novo.” United States v. Grayer, 232 F. App’x 446, 448 (6th Cir. 2007)

(quoting United States v. Hudson, 405 F.3d 425, 431 (6th Cir. 2005)). On this record, we cannot

conclude that, officers “of reasonable caution” would have believed there was consent from a party

with actual authority. Rodriguez, 497 U.S. at 188.

       First, just as the after-the-fact January 2007 letter from DPM is largely irrelevant under an

actual-authority analysis, it is irrelevant under an apparent-authority analysis, since that letter was

not among “the facts available to the officer[s] at the moment” of the search. Ibid.

       Regarding the 2004 letter from “Candice Ratcliff,” as the Supreme Court emphasized in

Rodriguez, the existence of a statement of consent from someone claiming authority is not always

enough. See ibid. (“Even when the invitation is accompanied by an explicit assertion that the person

lives there, the surrounding circumstances could conceivably be such that a reasonable person would

doubt its truth and not act upon it without further inquiry.”). This circuit has repeatedly sounded the

same theme. See United States v. Purcell, 526 F.3d 953, 963 (6th Cir. 2008) (“[A]pparent authority

cannot exist if there is ambiguity as to the asserted authority and the searching officers do not take

steps to resolve the ambiguity.”); United States v. Waller, 426 F.3d 838, 846 (6th Cir. 2005) (“If the

agents do not learn enough, if the circumstances make it unclear whether . . . the person giving



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No. 07-4060
United States v. Kimber

consent [had actual authority], then warrantless entry is unlawful without further inquiry.” (internal

quotation marks omitted)).

       Thus, while there is no dispute that the 2004 letter was a facially satisfactory statement of

consent, we do not believe that “a man of reasonable caution” would have relied on it as

authoritative under the circumstances. Rodriguez, 497 U.S. at 188. Grubbs knew that the Alms Hill

Apartments had “changed ownership three times since 2005,” so there was reason to “doubt [the

2004 letter’s continuing validity] and not act upon it without further inquiry,” ibid. – especially

where Grubbs was aware that “problems . . . ha[d] occurred over at the Hamilton County

Courthouse” when his fellow officers had attempted to rely on outdated trespass letters.

       Finally, while the officers testified that they had someone’s consent to enter the property at

the time of the search, their testimony did not establish whom this consent had come from or how

long before the arrest it was given. If the officers’ testimony that “there was a letter” of unspecified

age and provenance on file reflected the full extent of their knowledge at the time of the arrest – and

the record provides no basis to believe otherwise – we do not believe that such vague knowledge

would justify a “man of reasonable caution” in acting. Accordingly, we cannot affirm on the ground

that the officers had consent from a party with apparent authority. This exhausts the possibilities for

affirmance under the Fourth Amendment’s consent exception.

B. Reasonable Expectation of Privacy

       The government argues that we may affirm the district court’s decision not to suppress the

evidence on the alternative ground that Kimber lacked a reasonable expectation of privacy. In

United States v. Carriger, 541 F.2d 545 (6th Cir. 1976), we held that “a tenant in [a locked]

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No. 07-4060
United States v. Kimber

apartment building has a reasonable expectation of privacy in the common areas of the building not

open to the general public.” Id. at 549, 550-51; see also United States v. Heath, 259 F.3d 522, 534

(6th Cir. 2001) (“[T]he most casual reading of Carriger reveals that any entry into a locked

apartment building without permission, exigency or a warrant is prohibited.”).9 The government

argues that the present case falls outside our holding in Carriger, and that Kimber therefore had no

constitutionally protected expectation of privacy, because (1) he was not a tenant or resident of the

Alms Hill Apartments, and (2) the building was not sufficiently secure to qualify as “locked.”

1. Kimber’s Residence

        While Carriger spoke explicitly of “tenants,” the Supreme Court has since clarified that

one’s “status as an overnight guest [in someone else’s home] is alone enough to show . . . an

expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota

v. Olson, 495 U.S. 91, 96-97 (1990) (overnight guest of resident in duplex apartment); see also


        9
           Carriger’s holding has “never [been] overruled in this circuit” and thus “remain[s]
controlling,” United States v. Dillard, 438 F.3d 675, 683 (6th Cir. 2006), notwithstanding the fact
that “[t]he Sixth Circuit stands alone in taking th[is] position . . . .” United States v. Miravalles, 280
F.3d 1328, 1332 (11th Cir. 2002). See United States v. Nohara, 3 F.3d 1239, 1241-42 (9th Cir.
1993) (no reasonable expectation of privacy in locked apartment hallway); United States v.
Concepcion, 942 F.2d 1170, 1172-73 (7th Cir. 1991) (no reasonable expectation of privacy in locked
hallway of six-unit dwelling); United States v. Holland, 755 F.2d 253, 255-56 (2d Cir. 1985) (no
reasonable expectation of privacy in locked hallway of duplex); United States v. Eisler, 567 F.2d
814, 816 (8th Cir. 1977) (no reasonable expectation of privacy in locked apartment hallway); but cf.
United States v. Villegas, 495 F.3d 761, 771-72 (7th Cir. 2007) (Rovner, J., dissenting) (“When the
common hallway of a multi-unit building is secured, . . . a resident of that building reasonably may
expect that a non-resident – including a police officer – can lawfully enter the building only with the
permission of himself or another resident.”); Sean M. Lewis, Note, The Fourth Amendment in the
Hallway: Do Tenants Have a Constitutionally Protected Privacy Interest in the Locked Common
Areas of Their Apartment Buildings?, 101 Mich. L. Rev. 273 (2002) (discussing cases from various
circuits and identifying our rule, as established in Carriger, as the superior one).

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United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (“The Sixth Circuit has generously

construed the Fourth Amendment as protecting nearly all overnight guests, even when the guest

occupies a common area in the apartment that is not private from other residents.”). Thus, the

controlling inquiry is not whether Kimber was a tenant of the Alms Hill Apartments, as the

government suggests, or even a resident – but rather, whether he was, at the very least, an overnight

guest.

         Kimber argues that the record establishes that he was a resident. He points to the sworn

state-court criminal complaint signed by Stewart listing Kimber’s address as “2525 Victory Pkwy

Apt 1008,” as well as Kimber’s official state identification card listing the same address. The

government, by contrast, relies on Grubbs’s testimony that it “was . . . determined” – by unspecified

persons, and in an unspecified manner – that Kimber did not live at the Alms Hill Apartments (but

that Kimber’s aunt did), and Stewart’s testimony that, while Kimber told someone at the scene of

the arrest that he lived in the Alms Hill Apartments, he changed his story after arriving at the station-

house, where he stated that “he goes in and out of 2525 Victory, but he doesn’t live there.”

         Irrespective of what this evidence establishes regarding Kimber’s residence, none of it

suggests that Kimber was not, at the very least, an overnight guest of someone who resided at the

Alms Hill Apartments (where, after all, he was arriving shortly before midnight). Accordingly, we

cannot affirm the district court’s order on this basis.

2. The Building’s Security

         The Government also argues that “Carriger is distinguishable because [the] common area

of that building was secure,” while “[t]he rear entrance door [of the Alms Hill Apartments] was

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No. 07-4060
United States v. Kimber

equipped with a key pad security lock that was easily and frequently circumvented with a shove or

kick.” Appellee Br. at 14-15.

       In Carriger, we held that the tenant of a locked apartment building possessed a reasonable

expectation of privacy even though the officer used no force at all to enter; in that case, the officer

accessed the building by waiting for two workmen to enter and following them inside before the door

closed. 541 F.2d at 548. We observed that “[w]hether the officer entered forcibly . . . or by guile

through a normally locked entrance door, there can be no difference in the tenant’s subjective

expectation of privacy, and no difference in the degree of privacy that the Fourth Amendment

protects.” Id. at 551. In other words, the appropriate inquiry was not whether it was physically

possible for an officer to gain entry, but rather, whether the tenant would have expected him to do

so and whether society would regard such expectation as reasonable. Cf. United States v. Dillard,

438 F.3d 675, 682 (6th Cir. 2006) (“A person has [a legitimate] expectation of privacy if he has a

subjective expectation of privacy, and if society is prepared to recognize that expectation as

objectively reasonable.” (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring))).

       If it was subjectively unexpected and objectively unreasonable for the officer in Carriger to

circumvent a lock by following workmen into the building, it was certainly no less so for Grubbs,

Stewart, and their colleagues to circumvent a lock by forcing open the door in this case. With regard

to Kimber’s subjective expectation of privacy, there is no evidence that Kimber knew or should have

known that the lock could be circumvented in this manner. Nothing in the record suggests that the

lock’s fallibility was common knowledge to residents and guests of the Alms Hill Apartments. To

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United States v. Kimber

the contrary, Grubbs testified that when he had visited the building the previous week, he was unable

to gain entry until an unidentified person (not necessarily a resident or guest) demonstrated the door-

opening technique to him. This is affirmative evidence that the lock’s fallibility was not open and

obvious, and therefore, that it had no bearing on Kimber’s subjective expectation of privacy. The

government’s assertion that the lock was “frequently circumvented” has no basis in the record.10

       Further, we have no doubt that society would recognize Kimber’s subjective expectation of

privacy as reasonable. The Anglo-American tradition has long regarded the forcing open of locked

doors by law enforcement officials with special disapproval (even where, unlike here, the police have

a warrant supported by probable cause). See Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep.

194, 195-96 (K.B. 1603) (“[T]he law . . . abhors the destruction or breaking of any house (which is

for the habitation and safety of man) by which great damage and inconvenience might ensue . . . .”);

see also Wilson v. Arkansas, 514 U.S. 927, 931-34 & n.2 (1995) (discussing common-law and

colonial authorities). Accordingly, we cannot affirm on this alternative basis, either.



       10
           We do not mean to imply that the mere existence of a lock mechanism will always create
a subjective expectation of privacy. In United States v. Conti, 361 F.2d 153 (2d Cir. 1966), a case
that we distinguished in Carriger, the Second Circuit found no reasonable expectation of privacy
where “[t]he apartment building had a hall door which was meant to be kept locked, but there was
testimony that the door was often open, and even if closed, its lock was broken . . . .” Carriger, 541
U.S. at 549 (citing Conti). Similarly, in United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002),
the Eleventh Circuit distinguished Carriger, noting that the officers had entered through a door that
was “designed to be locked and function with an electronic card mechanism,” but the lock “at times
did not work and was not working when the officers arrived,” such that “[t]here was nothing to
prevent anyone and everyone who wanted to do so from walking in . . . .” Id. at 1329, 1333. In those
cases, the total, habitual lack of security would have been obvious to all residents, thus precluding
any subjective expectation of privacy. Here, by contrast, the record does not suggest that residents
(or guests) would have had any reason to believe that the lock was compromised.

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United States v. Kimber

                                        CONCLUSION

       For the reasons set forth above, we REVERSE the district court’s denial of Kimber’s

motion to suppress, VACATE Kimber’s conditional guilty plea and sentence, and REMAND for

further proceedings not inconsistent with this opinion.




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