Defendant was at the apartment of a woman he had known for 15 years and had just come out of the shower when the police arrived with a search warrant. The Washington Supreme Court held that he had standing to challenge the search of the premises even though he was not an overnight guest. He fell into the area in between a casual visitor with no standing and an overnight guest with standing that required a fact intensive inquiry. State v. Link, 2007 Wash. App. LEXIS 70 (January 17, 2007) (the case name is a free link if one wants to see the cases in fn. 11-12):
Link [inexplicably] did not challenge the search warrant [implying that he should have]; instead he moved to suppress the evidence found in Woolsey’s house under CrR 3.5 and 3.6. The trial court held that Link had standing to challenge the search because he was more than a casual guest in Woolsey’s apartment, as evidenced by Link’s (1) romantic relationship with Woolsey; (2) having a key to the apartment; and (3) being in a state of semi-undress when he was apprehended.
But the trial court denied Link’s motion to suppress. …
. . .
Federal and state courts that analyzed whether a social guest had standing found importance in the following factors: (1) the defendant’s relationship with the homeowner or tenant; (2) the context and duration of the visit during which the search took place; (3) the frequency and duration of the defendant’s previous visits to the home; and (4) whether the defendant kept personal effects in the home. n11 Relating to the second factor, courts typically have found no standing when the defendant was merely the guest attending a large party or the defendant failed to prove that he was the legal occupant’s guest. n12 We adopt these four factors as relevant, but not exhaustive, guidelines for the ultimate question of whether the defendant manifested a subjective expectation of privacy that society recognizes as reasonable. Jacobs, 101 Wn. App. at 87.
Looking at these four factors, we conclude that Link had a legitimate expectation of privacy in Woolsey’s home and thus has standing.
THE DEFENDANT’S RELATIONSHIP WITH THE HOMEOWNER OR TENANT
Link and Woolsey had a romantic relationship. This factor indicates that Link would have a reasonable subjective expectation of [*15] privacy when he was alone with Woolsey and her children. Society recognizes that a tenant’s intimate partner has an expectation of privacy while in his partner’s home and that this expectation is reasonable.
THE CONTEXT AND DURATION OF THE VISIT DURING WHICH THE SEARCH TOOK PLACE
Link testified that he was helping Woolsey pack and move, while the State theorized that Link was in the apartment to manufacture and use methamphetamine. It is clear, however, that the purpose of Link’s visit was not simply to engage in illegal and commercial activities; he took a shower and was partially undressed when Officer Mettler intruded. This is more evidence that Link had a subjective expectation of privacy that society would recognize as reasonable.
THE FREQUENCY AND DURATION OF THE DEFENDANT’S PREVIOUS VISITS TO THE HOME
Link spent the night at Woolsey’s home once or twice before, he had stayed in Woolsey’s apartment alone once, and had his own key. Link had a greater sense of privacy than would a visitor who was helping Woolsey move and who had not been entrusted with a key to the home.
WHETHER THE DEFENDANT KEPT PERSONAL EFFECTS IN THE HOME
Link kept an extra hat, jacket, and possibly a pair of shoes in Woolsey’s home. These items established Link’s frequent and possible overnight guest relationship at the apartment and evidence a subjective expectation of privacy in the apartment.
In summary, all four factors indicate that Link had a legitimate expectation of privacy in Woolsey’s home. Accordingly, we hold that Link has standing as a social guest to challenge Officer Mettler’s warrantless search.
Contrast this: The defendant contended that he had no interest in a trailer in an effort to distance himself from the drugs found in it. The court held that he had moved out and he was merely contributing to rent for the occupant. Therefore, he had no standing; yet, he [somehow] could consent to its search. Halderman v. State, 964 So. 2d 1163 (Miss. App. 2007):
P10. This Court holds that the trial court correctly determined that Halderman had no standing to challenge the warrantless search. Halderman testified that he recently had moved and did not live in the trailer. He also testified that he received his mail at a different address. While he admitted to paying rent and some utilities for his girlfriend, Baker, he maintained that he did so to assist her because she had a small child. Because Halderman disavowed any possessory interest in the property, he has no standing to challenge the search. Id.
P11. Even if Halderman had standing to challenge the warrantless search, the Court finds that the trial court did not err in determining that the signed consent was valid to waive the warrant requirement under the Fourth Amendment. See, e.g., Moore v. State, 933 So.2d 910, 917-918 (PP18-25) (Miss. 2006). The two officers that explained the consent form to Halderman and witnessed his signing of the form testified that the form was completed prior to Halderman’s signing and that Halderman consented to a search of the trailer. Halderman’s statement that the form was blank when he signed it and that he agreed only to a search of his vehicle was the only testimony that contradicted the officer’s testimony. Id. at 918 (P24) (citing Jones v. State, 607 So.2d 23 (Miss. 1991)). Accordingly, even if Halderman did have standing to challenge the search, he waived his right to do so when he signed the consent to search form.
Comment: Defense counsel: take note. A defendant can often be standingless yet still be held to be in possession. A standing inquiry should be used to either embrace standing and an expectation of privacy in the premises or to distance oneself as far as possible from the contraband. Sometimes it can be done, often not. This depends, at times, on appearances. After all, what is “apparent authority” but an appearance of authority? One could appear to the police to have authority at the time of the search but, on closer examination after the search, be found without it, and the police could still rely on his apparent authority to consent.
Officer’s seeing the defendant in possession of drugs is probable cause [Duh!]. United States v. Lopez, 2007 U.S. Dist. LEXIS 2807 (D. P.R. January 12, 2007).*
