W.D.Tenn.: Merely being in a friend’s house in one’s underwear during an early morning search isn’t standing

A nonresident defendant found in his underwear at the scene of house search didn’t show guest standing. That alone wasn’t enough. Probably if he brought a toothbrush. United States v. Davenport, 2020 U.S. Dist. LEXIS 242449 (W.D. Tenn. Dec. 28, 2020):

Assuming Defendant exhibited a subjective, actual expectation of privacy in the Leacrest residence, it would not be one that society is prepared to recognize as reasonable. The Magistrate Judge determined that Defendant did not have a reasonable expectation of privacy at the Leacrest residence. (ECF No. 67, 8-9.) The Magistrate Judge noted that Defendant did not reside at the home, had not slept there the previous night, and did not appear to keep personal items or clothes there. (Id.) Further, Tennial’s testimony indicated that Defendant was not a regular visitor to the home and did not have any authority or permission to enter or exit the home at his leisure. (Id. at 9.)

Being an overnight guest is sufficient to establish a person’s Fourth Amendment protections in a place. … Defendant contends, without evidence, that he was an overnight guest at the Leacrest residence the night prior to the search. (ECF No. 47, 4.) However, the Magistrate Judge found, after a hearing, that Defendant “had not slept at the house the night before the search” and instead “had arrived at the house earlier that morning to pick up his daughter for school.” (ECF No. 67, 8.) To the extent that there is evidence that Defendant was an overnight guest-that it was early in the morning and that Defendant was in his underwear in a bedroom–it is limited and purely circumstantial. (Id. at 3.) Therefore, the Court concludes that Defendant may not rely on any assertion of status as an overnight guest to support the argument that he had a legitimate expectation of privacy. See United States v. Berryhill, 352 F.3d 315, 317 (6th Cir. 2013) (“[Defendant] lacked any of the items one would expect an overnight guest to have with him. He carried no clothes or toothbrush ….”).

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