E.D.Ky.: When defendant asserts curtilage, he has to show standing

Defendant first failed to show that he had standing to challenge a search of open fields asserted to be curtilage. Then, it was open fields, and, alternatively, he consented. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66300 (E.D. Ky. March 5, 2012)*:

The Court is simply unable to assess whether Defendant had a reasonable expectation of privacy in the place where the propane tank was discovered. Significantly, no evidence was presented to establish ownership or other interest in the land where the propane tank was located. As discussed above, the “defendant claiming that a search violated his Fourth Amendment rights has the burden of demonstrating that he had a legitimate expectation of privacy in the place that was searched.” Mastromatteo, 538 F.3d at 544 (quoting Talley, 275 F.3d at 563. Here, Defendant did not present any evidence regarding this issue and has failed to meet his burden. Thus, the Court concludes that, although Defendant has standing to challenge the search of his home, he lacks standing to challenge the search of the property where the propane tank was located. Nevertheless, to ensure a complete analysis, the Court will assume for purposes of this Recommended Disposition that Defendant has standing to challenge both searches.