                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3125
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United
      v.                                 * States District Court for
                                         * the District of Minnesota.
Frank McCaster,                          *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: March 9, 1999

                                   Filed: October 12, 1999
                                    ___________

Before BEAM and HEANEY, Circuit Judges, and GOLDBERG,1 Judge of the
      United States Court of International Trade.
                                   ___________

BEAM, Circuit Judge.

       After a jury trial, Frank McCaster was convicted of possession with intent to
distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) and 841 (b)(1)(B).




      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
He appeals the district court's2 denial of his motion to suppress evidence and to
suppress statements. We affirm.

I.    BACKGROUND

      Frank McCaster lived in a duplex at 3326 Penn Avenue North in Minneapolis.
Pursuant to a valid warrant authorizing a search of his apartment, "including garages,
outbuildings and curtilage,"3 police officers searched McCaster's apartment. They
found a small quantity of crack cocaine in a ceramic statue in the apartment. They also
searched a hall closet in a common area at the back of the duplex. The closet was
shared by the other tenant of the duplex. The officers found over six grams of crack
cocaine in the closet.

       After the drugs were found, the officers informed McCaster that he was under
arrest and asked him to cooperate. After giving a Miranda warning, the officers
questioned McCaster. He waived his Miranda rights and gave a statement that was
recorded on audiotape. McCaster admitted that the crack cocaine, including that found
in the closet, belonged to him. He further admitted that, although the crack cocaine
found in the ceramic statue was for his personal consumption, he intended to sell the
crack cocaine found in the closet. After the recorded interview, McCaster agreed to
cooperate regarding his supplier. Based on that representation, McCaster was not
taken into custody but was allowed to attend his son's out-of-town football game that


      2
        The Honorable Bruce M. Van Sickle, United States District Judge, adopting the
report and recommendation of United States Magistrate Judge John M. Mason.
      3
        Curtilage originally referred to the land and outbuildings immediately adjacent
to a castle that were in turn surrounded by a high stone wall; today, its meaning has
been extended to include any land or building immediately adjacent to a dwelling, and
usually enclosed in some way by a fence or shrubs. See Black's Law Dictionary 384
(6th ed. 1990).

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weekend. When it later became clear that he would not cooperate with the police, he
was arrested.

       Before trial, McCaster moved to suppress the crack cocaine seized from the
closet and to suppress his statement. He contended that the search of the closet was
not authorized by the search warrant and that his statement was the result of improper
police coercion and was thus involuntary. After a hearing on the motions to suppress,
the magistrate judge recommended that they be denied. The magistrate judge found
that the search warrant authorized search of the closet as "curtilage." He further found
that, even if the search warrant did not adequately describe the area, the evidence was
nonetheless admissible since the officers' reliance on the warrant was objectively
reasonable. The magistrate judge also found no evidence of improper coercion by the
officers, and thus found McCaster's statement admissible. Over McCaster's objection,
the district court adopted the report and recommendation of the magistrate judge.

       McCaster was tried by a jury and convicted of one count of possession with
intent to distribute crack cocaine. The district court sentenced him to 120 months'
incarceration, finding the government had shown that he possessed over six grams of
crack cocaine. On appeal, McCaster challenges the admission of the crack cocaine
seized from the closet and the admission of his statement. He contends the district
court erred in finding that the search warrant authorized search of the closet and in
finding that his statement was voluntary.

II.   DISCUSSION

       McCaster argues that the closet does not fall within the definition of "curtilage,"
authorized to be searched in the warrant. He contends that historical definitions of
curtilage are not applicable in the context of urban, apartment-style living. We need
not decide whether common areas of a multi-unit dwelling are always included in the
term "curtilage," for we find that whatever the modern-day urban equivalent of

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curtilage, the evidence found in the hall closet was properly admitted in this case. If
the closet is within the apartment's curtilage, the warrant specifically authorizes the
search. If the closet is not part of the apartment's curtilage, McCaster has shown no
expectation of privacy to give him standing to challenge the search and the admission
of the evidence found therein.

        We may affirm the judgment on any grounds supported by the record, even if not
relied on by the district court. See Monterey Dev. v. Lawyer's Title Ins. Co., 4 F.3d
605, 608 (8th Cir. 1993). Assuming for the sake of argument that the area is not
curtilage, and thus not covered by the warrant, to challenge the constitutionality of the
search, McCaster must demonstrate that he possessed a legitimate expectation of
privacy in the particular area searched. See United States v. Nabors, 761 F.2d 465,
468 (8th Cir. 1985). Fourth Amendment rights may not be vicariously asserted. See
id. In order to show a legitimate expectation of privacy in the searched premises, the
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. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (recognizing
that an overnight guest has a reasonable expectation of privacy); Rakas v. Illinois, 439
U.S. 128, 130 n.1 (1978). Several factors are 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. See, e.g.,
Rawlings v. Kentucky, 448 U.S. 98, 105 (1980); Nabors, 761 F.3d at 469. We have
rejected the notion of a generalized expectation of privacy in the common areas of an
apartment building. See United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984).



       Our review of the record shows that McCaster has failed to prove that he had a
legitimate expectation of privacy in the hall closet. His assertion that the closet is not
within the curtilage of his apartment undermines his assertion of an expectation of

                                           -4-
privacy in the closet. Moreover, he disavowed any possessory interest in the contents
of the closet,4 failed to show any efforts to exclude others from the space, or any
precautions to maintain privacy. The evidence showed that two other tenants, as well
as the landlord, had access to the closet. In short, the evidence presented at the
suppression hearing supports a finding that McCaster had no reasonable expectation
of privacy in the hall closet. Under these circumstances, McCaster has no standing to
challenge the search. To hold otherwise would allow a criminal to keep contraband
from the legitimate reach of law enforcement by the simple act of storing it in a shared
common area.

        Finally, even if McCaster had shown an expectation of privacy in the closet, the
evidence establishes that it was objectively reasonable for the officers to search the
closet in reliance on the warrant. Evidence seized even through a deficient warrant is
still admissible if officers executing the warrant were objectively reasonable in relying
upon it. See United States v. Leon, 468 U.S. 897, 922 (1984). We agree that the close
proximity of the area to McCaster's living quarters and its enclosure within the duplex
unit supports the finding that it was reasonable for the officers to believe that the area
fell within the scope of the warrant.

        McCaster next challenges the admission of his recorded statement, contending
that it was not voluntary. In this context, we review the district court's findings of fact
for clear error, and its determination of voluntariness de novo, considering all the
circumstances surrounding the confession. See United States v. Ingle, 157 F.3d 1147,
1150 (8th Cir. 1998). When a defendant's will is overborne by coercive police activity,

       4
        Despite his initial admission that he owned the crack cocaine, McCaster argued
in his objections to the magistrate judge's report and recommendation that "no items
belonging to McCaster were found in the 'room'" (emphasis in original). He later
testified at trial that the cocaine found in the statue belonged to a visiting girlfriend and
McCaster's counsel argued that the cocaine found in the closet must have been left
there by former tenants.

                                            -5-
the resulting confession is inadmissible. See Arizona v. Fulminante, 499 U.S. 279, 288
(1991). The magistrate judge found that the officers had not employed improper
coercive tactics. We have reviewed the testimony and agree that there is no evidence
of improper coercion. The fact that the government encouraged McCaster to
cooperate, and then allowed him to remain at home rather than booking him, does not
establish the kind of coercive police activity that renders a confession involuntary. See
Colorado v. Connelly, 479 U.S. 157, 163-67 (1986). Tactics such as these will not
render a confession involuntary unless the overall impact of the interrogation caused
the defendant's will to be overborne. See Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.
1993). The fact that McCaster had been given the Miranda warning is another factor
that weighs in favor of the finding that the statement was voluntary. See United States
v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996).

III.   CONCLUSION

       The judgment of the district court is affirmed.

HEANEY, Circuit Judge, concurring in part and dissenting in part.

       I concur with the majority’s conclusion that the search of the closet was lawful
because the closet area was within the apartment’s “curtilage.” There is, however, no
reason for the majority to opine in dicta that McCaster did not have a reasonable
expectation of privacy in the duplex’s common closet Because they unnecessarily
reach this conclusion, I am forced to dissent.

       In my view, a tenant in a duplex has a reasonable expectation of privacy in
common areas shared only by the duplex’s tenants and the landlord. Three cases in our
circuit have directly addressed this issue. See United States v. McGrane, 746 F.2d 632
(8th Cir. 1984); United States v. Luschen, 614 F.2d 1164 (1980); and United States v.
Eisler, 567 F.2d 814 (8th Cir. 1977). Both McGrane and Luschen follow Eisler and

                                          -6-
hold that a tenant does not have a reasonable expectation of privacy in the common
areas of an apartment building. See Eisler, 567 F.2d at 816; McGrane, 746 F.2d at
634; Luschen, 614 F.2d at 1173. Each of these cases is distinguishable from the facts
of this case.

       Eisler was the first case to address this issue directly. In Eisler, a DEA agent
entered the defendant’s apartment complex and surveyed the defendant’s apartment
from a common hallway. 567 F.2d at 816. From that location, the agent overheard
conversations coming from the defendant’s apartment. See id. The court held that
because the common hallways were available for use by all residents and their guests,
as well as the landlord and his agents, the defendant had no reasonable expectation that
his conversations, heard from the common hallway, would be free from intrusion. See
id.

       In McGrane, a DEA agent entered the basement of the defendant’s apartment
building and looked in the defendant’s storage locker. 746 F.2d at 633. The agent saw
containers of a chemical used in manufacturing a controlled substance. See id.
Following Eisler, the court held that the defendant had no reasonable expectation of
privacy in the basement because it was a common area of the building accessible to all
tenants and the landlord. See McGrane, 746 F.2d at 634.

       In Luschen, a police officer surveyed the defendant’s apartment from the second-
floor landing near his apartment door. 614 F.2d at 1167. Also following Eisler, the
court held that the surveillance did not constitute an illegal search because a person has
no reasonable expectation of privacy in halls and common areas of apartment buildings.
See Luschen, 614 F.2d at 1173.

       These cases are distinguishable from the facts of this case. First, McCaster lived
in a duplex, where only he and the upstairs tenants resided. (See Appellant’s Br. at 8.)
Eisler, McGrane and Luschen involved multiple-unit apartment buildings with more

                                           -7-
than two tenants. See Eisler, 567 F.2d at 815-16; McGrane, 746 F.2d at 633; Luschen,
614 F.2d at 1167. Hence, fewer individuals had access to the common area in this case
than in our prior cases.

       Second, the common area in this case was a closet shared by McCaster, the
upstairs tenants, and the landlady. Unlike a hallway or basement, the closet was
isolated. It was located under the stairs that led to the upstairs apartment and was used
as a storage area for the tenants and the landlady. (Tr. of May 22, 1998, at 22.) As a
storage area, the closet likely would not be accessed by anyone other than the tenants
and landlady and would certainly not be accessed as frequently as a hallway or
basement. Thus, accessibility to the closet was more limited than the hallways or
basement addressed in our prior cases.

        Third, the facts of this case are similar to United States v. Fluker, 543 F.2d 709
(9th Cir. 1976), a case we distinguished in Eisler. See Eisler, 567 F.2d at 816. In
Fluker, the court held that the defendant had a reasonable expectation of privacy in the
corridor separating the door of his apartment from the outer doorway of the apartment
building. 543 F.2d at 1176. The court noted that the defendant lived in a building with
only two other tenants and that access to the entryway was limited as a matter of right
to the two basement tenants. See id. Furthermore, the outer door was always locked,
with only the building’s three tenants having keys. See id. Based on these facts, the
court found that the two basement tenants exercised “considerably more control over
access to that portion of the building than would be true in a multi-unit complex, and
hence could reasonably be said to have a greater reasonable expectation of privacy than
would be true of occupants of large buildings.” Id.

       Similar to the defendant in Fluker, McCaster’s building consisted of only two
units. Both the front and back doors of the duplex had locks, and only the tenants and
the landlady had access to the duplex. (See Appellant’s Br. at 12.) Further, the closet
was shared only by the tenants and the landlady. Thus, because the right to access to

                                           -8-
the duplex and use of the closet was limited to these individuals, McCaster could
reasonably have expected greater privacy than if he resided in a multiple-unit building.

       The nature of the living arrangement in a duplex, as opposed to a multi-unit
building, leads me to conclude that a tenant in a duplex has a reasonable expectation
of privacy in common areas shared only by the duplex’s tenants and the landlady.

        In so concluding, I must address the majority’s last point on this issue. The
majority states that if it were to hold as I would that McCaster had a reasonable
expectation of privacy under these circumstances, it “would allow a criminal to keep
contraband from the legitimate reach of law enforcement by the simple act of storing
it in a shared common area.” I find no support in decided cases for this proposition.
Holding that a tenant in a duplex has a reasonable expectation of privacy in the
common areas of the duplex only provides the tenant with standing to challenge a
warrantless search. It simply requires law enforcement to obtain a warrant before
searching such areas. It by no means provides criminals a safe harbor for their
contraband.

      For these reasons, I respectfully dissent.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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