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).