{"id":9132,"date":"2013-07-25T12:51:39","date_gmt":"2013-07-25T12:51:39","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-07-25T12:51:39","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9132","title":{"rendered":"TN: Defendant was a regular overnight guest in the home of his children and had standing"},"content":{"rendered":"

At the beginning of the suppression hearing, the state challenged standing. The officer\u2019s testimony supported standing, and the defense put nothing on, the court noting that had it not found standing on the little record there was, he could have filed an IAC claim against defense counsel. Then the court found the CI was not adequately supported and the search was suppressed. State v. Woods<\/a>, 2013 Tenn. Crim. App. LEXIS 624 (July 3, 2013). As to standing:<\/p>\n

<\/p>\n

Here, the trial court had no opportunity to make a credibility determination between Ms. Walker’s testimony that the defendant lived there and Agent Gilbert’s testimony that the defendant lived mainly in Bolivar and kept limited personal effects in the home. It had no opportunity to hear Ms. Walker’s testimony that the defendant was an integral and active part of the immediate family unit and father or father-figure to the minor children who lived there. Absent these factual determinations, we review solely the evidence presented at the suppression hearing by the State \u2014 the only party who put on proof \u2014 in considering whether the evidence preponderates against the trial court’s conclusion that the defendant lacked standing.fn9<\/p>\n

9 Of course, had we concluded the defendant lacked standing, see infra, the defendant could subsequently to this delayed direct appeal bring a post-conviction action and present proof that trial counsel was ineffective for failing to present evidence at the suppression hearing.\n<\/p><\/blockquote>\n

Agent Gilbert testified that the defendant’s tie to the residence was that he “stayed” there, alternating between Ms. Walker’s home and his main residence in Bolivar, and that the defendant kept some clothing “in the corner next to the bed.” We conclude that Agent Gilbert’s testimony that the defendant was a regular overnight guest and that the defendant was keeping clothing next to the bed at the time of the search serves to establish a significant enough connection to the household as a social guest that the defendant has established a reasonable expectation of privacy in his host’s home. Like the son in Robertson, the defendant was a “regular presence” in the household, and as such, has standing to challenge the search warrant.<\/p><\/blockquote>\n

One might wonder why footnote 9 was even there, unless the court was mildly perturbed that the defense didn’t try harder to support standing, but, as I’ve always said, the police testimony can make standing for the defense.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-9132","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/9132","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9132"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/9132\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9132"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9132"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9132"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}