New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Fourth Amendment Basics – Order of Protection Barring Presence In Home Negates Standing to Challenge Search

Antoine Cortez-Dutrieville wanted to challenge the seizure of evidence, including heroin and other paraphernalia, from the home of his child’s mother, Portia Newell.  At some point, however, Newell had obtained an order of protection which, among other things: (a) barred him from contacting her for most purposes, (b) “evicted and excluded” him from her home; (c) provided that he had no right or privilege to be at her home; (d) provided that her consent to his presence in her home could not override the dictates of the order; and (e) provided that he could be arrested without a warrant for violating the terms or conditions of the order.  At the time of the search and seizure, Dutrieville argued that he had been staying at Newell’s home for three days with her consent.  He also admitted that he was subject to the order of protection at all relevant times.

The district court rejected his challenge to the search and seizure, and the Third Circuit Court of Appeals affirmed.  These courts concluded that Dutrieville lacked standing to raise the challenge because he lacked a legitimate expectation of privacy in Newell’s home and/or any personal items he had in the home such as his overnight bag, since the order of protection barred him from being at the searched premises.  Dutrieville argued that he was there with Newell’s consent.  These courts found that most overnight guests in a home could raise such a challenge on this basis, since that status creates a reasonable expectation of privacy that society is prepared to recognize.  However, pursuant to applicable State law, Dutrieville’s presence in Newell’s home violated the order of protection and exposed him to criminal sanctions.  This gave Dutrieville the status of a squatter or trespasser who occupies property unlawfully.  Because his presence was wrongful, he lacked the objectively reasonable expectation of privacy necessary to seek suppression of the seized evidence.

For the same reasons, Dutrieville also lacked any objectively reasonable expectation of privacy in the overnight bag that he brought with him for his unlawful visit.  He was barred legally from Newell’s home, and therefore was prohibited from using it as a place to store his personal effects.

This relatively brief opinion is a vivid illustration of Fourth Amendment fundamentals.  Standing to challenge a search of the property and seizure of evidence will depend upon: (a) whether the individual demonstrated a subjective expectation of privacy in the property; and (b) whether that expectation of privacy is objectively reasonable.   Dutrieville could not satisfy the second prong of the test because of the order of protection.  Courts considering such motions will evaluate the strength of the movant’s interest in the searched property and the nature of their control over it.  Simply put, a defendant cannot seek to suppress evidence seized from a particular place unless, as a threshold matter, they were there legally.