United States v. Michael Wayne Erp ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1924
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United States of America, *
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Appellee, *
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v. *
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Michael Wayne Erp, *
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Appellant. *
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Appeals from the United States
No. 96-2022 District Court for the
___________ Western District of Arkansas.
United States of America, * [UNPUBLISHED]
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Appellee, *
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v. *
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Robert Stone, *
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Appellant. *
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Submitted: March 6, 1997
Filed: March 10, 1997
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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
Michael Erp and Robert Stone entered conditional guilty pleas
to aiding and abetting each other in the manufacture of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18
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U.S.C. § 2. They now challenge the district court's1 denial of
their motion to suppress evidence seized from Stone's barn at the
time of their arrest. We affirm.
A person claiming to have suffered an unlawful invasion in
violation of the Fourth Amendment must establish a legitimate
expectation of privacy in the object searched or seized. See
United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994). We
must consider whether the person has asserted a subjective
expectation of privacy, and whether that subjective expectation is
objectively reasonable. See id.
We conclude Erp lacked standing to challenge the search and
seizure, as he presented no evidence below showing that he lived on
the Stone property or was a guest in the home at the time of the
search. Cf. Minnesota v. Olson, 495 U.S. 91, 95-100 (1990)
(holding overnight guest had legitimate expectation of privacy in
host's home).
As to Stone, we conclude the district court did not clearly
err in finding that the barn was outside the curtilage of Stone's
home. See United States v. Swepston, 987 F.2d 1510, 1513 (10th
Cir. 1993) (what comprises curtilage is question of fact); see also
United States v. Dunn, 480 U.S. 294, 301 (1987) (defining
curtilage). The barn was 500 feet from Stone's house, was not
included within the fenced yard around his home, was not being used
for "intimate activities of the home," and was not separately
fenced to prevent observation. Cf. Dunn, 480 U.S. at 302-03 (barn
lay outside curtilage of ranch house where barn was 60 yards from
The HONORABLE JIMM LARRY HENDREN, United States District Judge
for the Western District of Arkansas, adopting the report and
recommendations of the HONORABLE BEVERLY R. STITES, United States
Magistrate Judge for the Western District of Arkansas.
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house, did not lie within area surrounding house that was enclosed
by fence, and was not being used for intimate activities of home,
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and various interior fences were designed to corral livestock, not
to prevent persons from observing what lay inside enclosed area).
We further agree with the district court that--given the ease of
visibility and access into the barn--Stone possessed no legitimate
expectation of privacy in this structure outside the curtilage.
See Wabun-Inini v. Sessions, 900 F.2d 1234, 1242 (8th Cir. 1990).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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