To have standing to challenge a home search, a guest must show a degree of acceptance into the household or an ongoing and meaningful connection to the host’s residence so that the guest has a reasonable expectation of privacy in the host’s residence. Here, defendant was a close friend of the host and stayed at the house regularly, often sleeping on the couch but not spending the night. He had a substantial enough connection to the house to justify standing. The fact he wasn’t there and wasn’t an overnight guest when the search occurred doesn’t matter. State v. Dannebohm, 2018 Kan. LEXIS 356 (July 6, 2018):
In [Talkington], the court suppressed the evidence when it found that the officers conducted an illegal curtilage search. Talkington likewise sought to suppress the evidence in his case, arguing he was entitled to the same ruling as a welcomed social guest. Using the “Carter factors,” we noted that Talkington had known the host for seven to eight years, and Talkington had visited the house several times. Talkington stopped at the house whenever he was in town, including the previous week. And while at the house, the two men worked together on cars and mopeds in the backyard. On the day of the arrest, Talkington had arrived nearly four hours before the search to help work on a car in the back yard. In the end, we held Talkington had a reasonable expectation of privacy in the host’s home, and we suppressed the evidence. 301 Kan. at 482-83, 487-88.
In many respects, Dannebohm has a stronger connection to Tracy’s apartment. Tracy and Dannebohm knew each other for about 10 years, and they shared a close, sibling-like relationship. See United States v. Heath, 259 F.3d 522, 533 (6th Cir. 2001) (“Heath and Horton are cousins; their familial tie is clearly a ‘relationship’ which pre-dates the apartment’s use for illegal conduct as contemplated by Carter.”). In the weeks before the search, Dannebohm was at the apartment daily. Tracy thought of him as a welcomed guest. She allowed him to stay at the apartment when she was absent. And he kept a duffel bag with his clothing at the apartment.
What is more, Dannebohm at times slept on the couch for hours at a time. Though he was not an overnight guest, the fact that Tracy permitted him to nap there after he ate dinner suggests a significant degree of acceptance into the household. See Poe, 556 F.3d at 1122 (permission to stay overnight is not a prerequisite for Fourth Amendment standing). Consider, for example, the social guest in Rhiger, 315 F.3d 1283. On the day of the search, he napped at the home while the host was gone. Although he knew the host for only about two weeks before the search, the court held Rhiger had standing to challenge the search:
“Mr. Rhiger’s regular presence at the home, his overnight stays, the discovery of his receipts in the house, and his comfort in entering the residence unannounced and taking a nap, all support our determination that Mr. Rhiger had an ongoing and meaningful connection to Mr. Brown’s home as a social guest.” 315 F.3d at 1287.
See Olson, 495 U.S. at 99 (“We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.”).
Were we to stop here, we would easily conclude Dannebohm has shown a “degree of acceptance into the household” as well as a “meaningful connection” to Tracy’s apartment. But the Court of Appeals believed that because Dannebohm was not present at the time of the search, he was not a current guest of Tracy’s. Dannebohm, 2017 WL 3447883, at *5-6. This holding is not entirely clear. Dannebohm was a welcomed guest who frequented Tracy’s apartment daily. And he was there on the day of the search. The panel must have thought Dannebohm lost any reasonable expectation of privacy the moment he left the apartment. We disagree.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)