IL: Occasionally spending the night in the place searched was sufficient for standing

Defendant occasionally stayed at the place searched, and officers found mail addressed to him there. He did not have to be an exclusive resident anywhere to have standing in one or more places. However, he loses on the merits because there was probable cause for issuance of the search warrant, and the GFE would save it anyway. United States v. Henry, 2010 U.S. Dist. LEXIS 139164 (N.D. Ga. December 7, 2010):

The Government correctly contends that Defendant cannot show standing simply through the contentions of Government agents or the theory of the Government’s case. See United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). However, hearsay is admissible at suppression hearings, and I am aware of no case law or rationale that would preclude Defendant’s use as evidence of statements that were procured by Government agents. Cf. United States v. Free, No. CR606-001, 2006 WL 2366430, *3 (S.D. Ga. Aug. 14, 2006) (unpublished) (finding expectation of privacy shown in part by statements given to law enforcement officer).

A person may have an expectation of privacy in a home even though it is not his exclusive residence. In Minnesota v. Olson, 495 U.S. 91, 98 (1990), the Supreme Court held that an overnight guest in someone else’s home had a legitimate expectation of privacy, and could therefore challenge a warrantless entry into the host’s home to execute an arrest warrant. Here, Defendant established that he had even more of an expectation of privacy in the 168 Rocky Ford Road residence than an occasional overnight guest. Two other residents of the house told agents that Defendant lived there, and Defendant’s belongings and recent mail addressed to him were found in a room in the house. Cf. United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988) (finding that individual who had key to apartment, was afforded unrestricted access, kept clothes in the apartment and stayed there at least eight times in a one-month period had an expectation of privacy). Therefore, Defendant has met his burden of proof on standing. However, Defendant’s motions fail for other reasons.

Note: Zermeno does not quite hold that the government’s theory can create standing. The mere fact somebody had a possessory interest in drugs in a drug house hardly confers standing, anyway. And, the law never said that mere possession creates standing. From Zermeno:

The district court concluded that Zermeno had met his burden of establishing standing. As to Silva-Sosa, the district court stated “[h]e has been charged with possession in these matters, and he’s entitled to standing.”

Silva-Sosa concedes that a mere possessory interest in the item seized does not by itself confer standing to challenge the search of the place in which the item was found. Legal “possession of a seized good [is not] a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). Thus, Silva-Sosa did not have standing simply because he was charged with a possessory crime.

Silva-Sosa contends, however, that he is entitled to standing based on a theory of estoppel. He contends the government’s theory of the case was that he frequented the Adrienne Street house and stored contraband there. He argues the government should not now be permitted to take the contradictory position that he lacks standing to challenge the search of the premises. We reject this argument. There is no contradiction in the government’s positions. The mere fact that Silva-Sosa stored contraband at the Adrienne Street residence is insufficient to establish that he had a legitimate expectation of privacy there. See Rakas, 439 U.S. at 143, 99 S.Ct. at 430.