UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-254-01-JD

FNU LNU a/k/a Jimmy Oshunkey

O R D E R

The defendant has moved to suppress certain documents

allegedly seized from a unit he rented at a self-storage

facility. The government intends to introduces those materials

as exhibits 23 through 46 at the defendant’s upcoming trial on

charges of presenting false information, including another

person’s identification, to the Social Security Commissioner.

The defendant had been leasing the storage unit in question,

located in Billerica, Massachusetts, at the time he was arrested

on the instant charges on December 15, 2005. In the body of his

motion to suppress, the defendant represents that only he had

access to the unit and only his items were stored there. 

Following his arrest, however, the defendant stopped paying rent

for the unit. Though the defendant represents that he “had

contact with the management of the facility to apprise them of

his situation,” he does not say how the management responded to

this information. Mot. Suppress. ¶ 5.

On May 16, 2006, a government agent learned that the

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facility planned to auction the property stored in the unit the

next day because the defendant had not paid rent since December

2, 2005, and “a locker is considered abandoned if the rental fee

is not paid for 60 days.” Obj. Mot. Suppress at 2. The agent,

together with a postal inspector, then “requested and were

granted permission to inspect the contents of the locker” by

facility management. Id. This inspection turned up the

documents in question.

The defendant argues that, because he had a reasonable

expectation of privacy in the storage unit and its contents,

their search and seizure without a warrant violated the Fourth

Amendment. The government responds that the defendant, in fact,

had relinquished any such expectation by failing to pay rent on

the unit for several months prior to the search, which gave the

facility the right to dispose of the property.

 To have standing to challenge a search or seizure, the

defendant has the burden to show that he has a reasonable

expectation of privacy in the area searched or the items seized. 

E.g., United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004);

United States v. Dunning, 312 F.3d 528, 531 (1st Cir. 2002);

United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir. 1994). In

United States v. Melucci, 888 F.2d 200 (1st Cir. 1989), the First

Circuit ruled that the defendant lacked a reasonable expectation

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of privacy in a storage unit or its contents where he had fallen

more than one month behind in his rent payments, allowing the

owner of the facility to effect a repossession under the lease by

removing the lock and entering the unit, at which point he

discovered contraband and summoned the police. Id. at 21. The

circuit reasoned that these facts “indicate[d] that [the

defendant’s] possession and control over the unit had terminated

by the time of the search.” Id.; see also United States v.

Poulsen, 41 F.3d 1330, 1335-37 (9th Cir. 1994) (no reasonable

expectation of privacy in storage unit on which defendant failed

to pay rent, triggering facility’s rights to enter unit, remove

property, and impose lien on it); United States v. Abiodun, 2005

WL 3117305, at *2-*3 (S.D.N.Y. Nov. 22, 2005) (similar).

Here, the defendant likewise failed to pay at least four

month’s rent by May, 2006, causing the facility to treat his

storage unit as abandoned long before the agents inspected the

property stored there. He therefore relinquished any reasonable

expectation of privacy he had in the unit or its contents. The

fact that the defendant “apprised” the management of the storage

facility that he had been arrested, presumably as a justification

for his failure to pay rent, does not itself support a different

result. See Poulsen, 41 F.3d at 1337 (noting that defendant’s

inquiry as to access to storage unit despite outstanding rent

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1Such an interpretation is problematic for practical

reasons: a successful auction cannot be expected to take place

unless prospective purchasers have the opportunity to examine the

goods up for sale. Furthermore, a different provision of the

same Massachusetts statute gives the facility the right to

exclude the lessee from the unit after five days’ default except

“for the sole purpose of viewing the contents of his leased space

in order to verify the contents therein.” Mass. Gen. Laws ch.

105A, § 5. Taken as a whole, then, the Massachusetts law does

not appear to support the defendant’s position. 

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served only to demonstrate his awareness of that fact). Indeed,

the defendant, who has the burden to show a reasonable

expectation of privacy, does not suggest that management gave any

indication that it would not proceed to enforce its rights to the

unit and its contents in spite of his incarceration.

The defendant’s argument that he retained “a right to claim

his items up until the time of any auction,” Mot. Suppress at 3,

is similarly unavailing. It is true that Massachusetts law

provides that “[e]xcept as otherwise . . . stated in the rental

agreement, the exclusive care, custody and control of all

property stored in the leased self-service space shall vest in

the occupant until a lien sale . . . .” Mass. Gen. Laws ch.

105A, § 6. The defendant does not explain, however, how this

provision can be interpreted to prevent the facility from

allowing third parties simply to inspect the property prior to

the sale as the federal agents did here.1 In any event, the

imposition of a lien over a defendant’s items kept in a storage

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facility by virtue of his failure to pay rent has been found

sufficient to extinguish his expectation of privacy in them under

similar circumstances. Poulsen, 41 F.3d at 1335-37; Abiodun,

2005 WL 3117305, at *4.

Accordingly, the defendant has failed to carry his burden to

show a reasonable expectation of privacy in the storage unit or

its contents under the totality of the circumstances. See

Melucci, 888 F.2d at 202. His motion to suppress (document no.

27) is therefore DENIED.

Finally, the admissibility of the documents in question is

an issue which will be addressed during trial. None of the

documents shall be referred to without a prior ruling by the

court that the document is admissible.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 16, 2006

cc: Stanley W. Norkunas, Esquire

Alfred J.T Rubega, Esquire

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