KS: Guest standing doesn’t require overnight stays to be substantial enough

To have standing to challenge a home search, a guest must show a degree of acceptance into the household or an ongoing and meaningful connection to the host’s residence so that the guest has a reasonable expectation of privacy in the host’s residence. Here, defendant was a close friend of the host and stayed at the house regularly, often sleeping on the couch but not spending the night. He had a substantial enough connection to the house to justify standing. The fact he wasn’t there and wasn’t an overnight guest when the search occurred doesn’t matter. State v. Dannebohm, 2018 Kan. LEXIS 356 (July 6, 2018):

In [Talkington], the court suppressed the evidence when it found that the officers conducted an illegal curtilage search. Talkington likewise sought to suppress the evidence in his case, arguing he was entitled to the same ruling as a welcomed social guest. Using the “Carter factors,” we noted that Talkington had known the host for seven to eight years, and Talkington had visited the house several times. Talkington stopped at the house whenever he was in town, including the previous week. And while at the house, the two men worked together on cars and mopeds in the backyard. On the day of the arrest, Talkington had arrived nearly four hours before the search to help work on a car in the back yard. In the end, we held Talkington had a reasonable expectation of privacy in the host’s home, and we suppressed the evidence. 301 Kan. at 482-83, 487-88.

In many respects, Dannebohm has a stronger connection to Tracy’s apartment. Tracy and Dannebohm knew each other for about 10 years, and they shared a close, sibling-like relationship. See United States v. Heath, 259 F.3d 522, 533 (6th Cir. 2001) (“Heath and Horton are cousins; their familial tie is clearly a ‘relationship’ which pre-dates the apartment’s use for illegal conduct as contemplated by Carter.”). In the weeks before the search, Dannebohm was at the apartment daily. Tracy thought of him as a welcomed guest. She allowed him to stay at the apartment when she was absent. And he kept a duffel bag with his clothing at the apartment.

What is more, Dannebohm at times slept on the couch for hours at a time. Though he was not an overnight guest, the fact that Tracy permitted him to nap there after he ate dinner suggests a significant degree of acceptance into the household. See Poe, 556 F.3d at 1122 (permission to stay overnight is not a prerequisite for Fourth Amendment standing). Consider, for example, the social guest in Rhiger, 315 F.3d 1283. On the day of the search, he napped at the home while the host was gone. Although he knew the host for only about two weeks before the search, the court held Rhiger had standing to challenge the search:

“Mr. Rhiger’s regular presence at the home, his overnight stays, the discovery of his receipts in the house, and his comfort in entering the residence unannounced and taking a nap, all support our determination that Mr. Rhiger had an ongoing and meaningful connection to Mr. Brown’s home as a social guest.” 315 F.3d at 1287.

See Olson, 495 U.S. at 99 (“We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.”).

Were we to stop here, we would easily conclude Dannebohm has shown a “degree of acceptance into the household” as well as a “meaningful connection” to Tracy’s apartment. But the Court of Appeals believed that because Dannebohm was not present at the time of the search, he was not a current guest of Tracy’s. Dannebohm, 2017 WL 3447883, at *5-6. This holding is not entirely clear. Dannebohm was a welcomed guest who frequented Tracy’s apartment daily. And he was there on the day of the search. The panel must have thought Dannebohm lost any reasonable expectation of privacy the moment he left the apartment. We disagree.