W.D.La.: No REP in mother’s house; he hadn’t stayed overnight in two weeks prior to search

Defendant who occasionally stayed in his mother’s house, but not in the previous two weeks, had no reasonable expectation of privacy in the premises to contest a search. United States v. Alexander, 2009 U.S. Dist. LEXIS 91297 (W.D. La. September 16, 2009)*:

In this case, Alexander clearly did not reside at the home, nor was he a co-tenant or co-owner of the home. Alexander testified in his Affidavit that he was a frequent visitor at his mother’s home, that he often kept personal belongings at her home, and that he fairly frequently stayed overnight. Alexander cites Minnesota v. Olson, supra, in support of the proposition that “staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.” However, Olson is distinguishable because, in that case, the defendant had spent the night previous to his arrest in the house which was the subject of the search at issue. In the instant case, there is no evidence in the record that Alexander had spent the night at the subject premises in over two weeks prior to the search, much less on the evening just before the search.

Additionally, Alexander cites Rose v. United States, 629 A.2d 526 (D.C. 1993) for the proposition that the close kinship of the defendant and the owner of the searched premises is relevant in determining standing, even without an overnight stay. The facts in Rose are likewise distinguishable. Alexander has failed to offer any evidence that he had a key to the home or that he had unencumbered access to the home. See also United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981). Further, Alexander failed to offer evidence that he had the ability to exclude others from the home when he wanted privacy.

Officers came up to defendant’s parked car and asked the driver and the passenger simultaneously for their identification. No matter how nice the officers were, it was still a stop. Defendant gave a false name in response to an unlawful stop because there was no reason to stop the defendant’s car. State v. Anderson, 231 Ore. App. 198, 217 P.3d 1133 (2009) (en banc).*

Defendant has no constitutionally recognized privacy interest in an emergency room room where he was being cared for after an accident where he was DUII under State v. Cromb, 220 Ore. App. 315, 185 P.3d 1120, rev den, 345 Ore. 381, 195 P.3d 911 (2008), decided after this case was submitted. His consent to a BAC test was not voluntary. State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (en banc)*:

Thus, in light of Newton and the other factors discussed above (the facts that defendant had just been arrested, had been injured in a car accident, and was under the influence of intoxicants), defendant’s consent was not voluntary for the purposes of Article I, section 9. The trial court erred in denying defendant’s motion to suppress on the basis that defendant voluntarily consented to the blood test.