Archives for: January 2007, 22

01/22/07

Permalink 05:26:07 am, by fourth, 838 words, 9889 views   English (US)
Categories: General

Social guest who stayed overnight only six times in two years was sufficiently close to the owner and premises to have standing

An issue which has appeared a couple of times recently, such as Jan. 18th's post, is an apparent willingness to engage in real fact analysis and expand the rights of social guests: social guest standing where the guest was not an overnight guest. Finding standing where the social guest was a good friend who hung out at his friend's house and spent the night is United States v. McKinney, 470 F. Supp. 2d 1226 (D. Kan. 2007). "Ultimately, the court must determine whether [the defendant], as a social guest, had an 'ongoing and meaningful connection to the residence.'"

Although Mr. McKinney did not permanently live at Mr. Newsom's residence, Mr. Newsom's testimony indicates that the two had known each other for about two years and that Mr. McKinney visited Mr. Newsom socially about once a month to watch ball games or barbeque. Furthermore, although Mr. McKinney did not have a key or keep any personal belongings at the residence, he had spent the night there about five or six times in the two years prior to the night of the search. On two or three occasions, Mr. Newsom allowed Mr. McKinney to use the residence in Mr. Newsom's absence. Mr. McKinney also kept his vehicle in Mr. Newsom's garage and there was no indication that Mr. Newsom received any money in exchange for this.

In support of his argument that he had standing to object to the search as a social guest, Mr. McKinney relies heavily on the Tenth Circuit's opinion in United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003). The defendant in Rhiger had known the homeowner about two weeks, had stayed overnight at the residence three or four times, and on the day of the search had entered the unoccupied residence unannounced to take a nap. Id. at 1286. A neighbor testified he had seen the defendant's car at the residence for several days and receipts left by the defendant were found in the residence. Id.

The Tenth Circuit began its analysis with the Supreme Court decision in Minnesota v. Carter, 525 U.S. 83 (1998), which held that an individual present at another's property for purely commercial reasons has no expectation of privacy to challenge a search of that property. Id. citing Carter, 525 U.S. at 90-91. The Circuit also observed that "the Court pointedly contrasted the status of a guest who has a 'degree of acceptance into the household' from a guest present for 'purely commercial' reasons, noting the former possessed a far greater expectation of privacy in the premises than the latter." Id. at 1286 (citing Carter, 525 U.S. at 90). The Circuit ultimately concluded that the defendant in Rhiger had "'an ongoing and meaningful connection' to [the residence] as a social guest" and therefore had a legitimate expectation of privacy in the residence. Id. at 1287.

In this case, the friendship between Mr. McKinney and Mr. Newsom may not be as close as the friendship Mr. Rhiger had with his host. Mr. Rhiger had only known the host two weeks and spent the night at his residence three or four times. In this case, Mr. McKinney stayed the night at Mr. Newsom's residence only five or six times over the course of two years. However, the court does not think the relative "closeness" of the friendship is significant. The question is whether Mr. McKinney was more like one who is present for "purely commercial reasons" or whether he was a guest who had a sufficient "degree of acceptance" in Mr. Newsom's home. Ultimately, the court must determine whether Mr. McKinney, as a social guest, had an "ongoing and meaningful connection to the residence."

This case is different from the purely commercial relationship in Carter. 525 U.S. at 83. Although Mr. Newsom worked on Mr. McKinney's car while it was stored at the residence, the facts do not indicate that Mr. Newsom received any significant compensation. Furthermore, similar to the facts in Rhiger, Mr. McKinney stayed the night at Mr. Newsom's residence several times and visited him socially quite a few times over the course of their friendship. Although he had to have Mr. Newsom's permission, Mr. Newsom would allow Mr. McKinney to be in the residence when he was not home. All of these facts indicate that Mr. McKinney experienced a "degree of acceptance" in Mr. Newsom's residence.

Based on the Tenth Circuit's reasoning in Rhiger, the court concludes that Mr. McKinney had an "ongoing and meaningful connection" to Mr. Newsom's residence. Accordingly, he had a legitimate expectation of privacy in the residence and he has standing to challenge the search of Mr. Newsom's home. Because Mr. McKinney has established that he had a legitimate expectation of privacy in Mr. Newsom's home, the court must go on to determine the validity of Mr. Newsom's consent to the search and whether the officers in this case exceeded the scope of that consent.

Probable cause as to a vehicle means it is searchable under the automobile exception because there is no separate exigency requirement. United States v. Freemyer, 2007 U.S. App. LEXIS 1212 (9th Cir. January 16, 2007)* (memorandum).

FourthAmendment.com

Notes on Use

January 2007
Sun Mon Tue Wed Thu Fri Sat
<< < Current > >>
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31      

Search

by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  FDsys: Many district courts
  FDsys: Many federal courts
  FDsys: Other
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


Misc

XML Feeds

What is RSS?

Who's Online?

  • abileachali Email
  • fuhintoneetef Email
  • repflielt Email
  • suegreefult Email
  • excexycheetry Email
  • gypeplaipiz Email
  • teartgrittink Email
  • exitiettwesee Email
  • shourryhego Email
  • alobabera Email
  • sypecrucceeme Email
  • spisyfoes Email
  • comeensuche Email
  • ranynon Email
  • autociava Email
  • ketitesetug Email
  • emunlinuifofs Email
  • jinonoforse Email
  • hyncassinny Email
  • carpinteyrohno Email
  • aerothshiesse Email
  • immuctiohic Email
  • essexisalaync Email
  • slepleentaiff Email
  • vomozigocog Email
  • boypepelelync Email
  • jolosizezef Email
  • illilmbiostus Email
  • jineunreali Email
  • deannydwerm Email
  • pyncnachind Email
  • chaphsiperype Email
  • nakreinia Email
  • driertyrord Email
  • hildevavalm Email
  • carpinteyrocsw Email
  • oppopezed Email
  • merzerenunc Email
  • wearsehem Email
  • himbdyday Email
  • carpinteyrohoa Email
  • outletrdc Email
  • Guest Users: 130

powered by
b2evolution