State v. Dannebohm , 421 P.3d 751 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,981
STATE OF KANSAS,
Appellant,
v.
BRANDON ALVIN DANNEBOHM,
Appellee.
SYLLABUS BY THE COURT
1.
When a defendant's standing to challenge a search is in question, the burden falls
on the defendant to show an expectation of privacy in the property searched. Defendants
may testify at a suppression hearing to establish their standing to challenge a search
without jeopardizing their defense at trial.
2.
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.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 11, 2017.
Appeal from Barton District Court; RON SVATY, judge. Opinion filed July 6, 2018. Judgment of the Court
of Appeals reversing the district court is reversed. The case is remanded to the Court of Appeals with
directions.
Douglas A. Matthews, assistant county attorney, argued the cause, and Amy J. Mellor, county
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.
Donald E. Anderson II, of Anderson, Bristow, & Anderson Law Office, of Ellinwood, argued the
cause and was on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Law enforcement officers searched Alexis Tracy's apartment for
Brandon Alvin Dannebohm but did not find him. Instead, they found his safe, which
contained 447.5 grams of methamphetamine. Dannebohm moved to suppress this
evidence. But the State argued Dannebohm lacked standing to challenge the search
because the apartment was not his and he did not live there.
The district court at first agreed with the State, but upon reconsideration, it found
Dannebohm had standing and went on to suppress the evidence. The State filed an
interlocutory appeal, and our Court of Appeals reversed, holding Dannebohm lacked
standing. We disagree. Dannebohm had a reasonable expectation of privacy in Tracy's
apartment at the time of the search, so he has standing to challenge the search. We thus
reverse and remand this appeal to the Court of Appeals so it can rule on the merits of the
State's appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On June 23, 2015, officers Chance Bailey and Jacob Harlow of the Ellinwood
Police Department were searching for Dannebohm who had an outstanding arrest
warrant. That evening, law enforcement received a tip that Dannebohm was at Tracy's
apartment in Ellinwood. In fact, Dannebohm had arrived at Tracy's apartment that
morning carrying a blue cooler as Tracy was leaving to run errands.
No one was present at Tracy's apartment when the officers arrived. Eventually, the
apartment manager helped Officer Harlow get in touch with Tracy over the phone. He
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told Tracy they were looking for Dannebohm and believed he was inside her apartment.
Tracy—who was in Great Bend—said Dannebohm was not there. She said she was
driving home. Tracy did not mention that Dannebohm was with her in the vehicle at the
time of the call. Afterwards, she dropped him off at her mother's house and returned to
Ellinwood.
Once she arrived, Tracy told the officers she was "pretty sure" there was nobody in
her apartment. Officer Harlow testified that Tracy said Dannebohm had been there earlier
that day but "she didn't believe he was still there." Officer Harlow still asked Tracy for
her consent to search the apartment for Dannebohm, and she assented. Tracy remained
outside with Officer Bailey while other officers—along with a police dog—searched the
apartment. Dannebohm was not inside. But resting on a bed was "a glass pipe with white
and burnt residue." In the same room was a black Sentry safe being used as a TV stand.
Tracy said the safe belonged to Dannebohm. Also in the room was the same blue cooler
Dannebohm carried into the house that morning. Somewhere in the apartment the officers
found a duffel bag containing clothing that evidently belonged to Dannebohm.
At some point, the dog alerted to the presence of drugs on the bed near the pipe. It
also detected the presence of drugs on the safe. The officers seized the pipe and the safe
but not the duffle bag. Rather than trying to open the safe, they took it to the police
department where they placed it in an evidence locker. After obtaining a warrant, the
officers opened the safe using the combination (which they already possessed because
they had dealt with the same safe in a prior case). Inside was a warrant and bonding
information for Dannebohm as well as 447.5 grams of methamphetamine.
Tracy said Dannebohm brought the safe to her apartment sometime before June 9,
2015. Before the search, she told the officers that if there were drugs in the safe, they
belonged to Dannebohm and not her. Tracy stored no personal items in the safe. When
asked if she could access its contents, she responded, "I'm pretty sure the PIN was written
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down somewhere but, I mean, I never really got into it." She said the safe was
occasionally left open.
The State charged Dannebohm with possession with intent to distribute
methamphetamine and no drug tax stamp. Before trial, he moved to suppress the
evidence because he believed the search with the dog exceeded the scope of Tracy's
consent. But before the court considered the merits of Dannebohm's claim, the State
moved to dismiss his motion, arguing he lacked standing to challenge the search because
he had no reasonable expectation of privacy in Tracy's apartment.
The district court conducted a bifurcated evidentiary hearing on the motion to
dismiss. Tracy testified she had known Dannebohm for about 10 years. She and
Dannebohm had no romantic relationship. Tracy thought of him as a brother. That
summer Dannebohm was at her apartment at least once a day to check on her because she
was pregnant. Tracy considered Dannebohm a welcomed guest. When asked if
Dannebohm would ever stay the night, she answered, "Maybe once or twice." Tracy let
him keep some clothes and "other things" at the residence. Tracy also permitted
Dannebohm to be at the apartment when she was not there.
At the same time, Tracy stated on cross-examination that she was the only person
on the lease. Dannebohm paid no portion of the rent, utilities, or food. He had no key to
the apartment, and Tracy typically locked the door when she left. She did not believe
Dannebohm listed her apartment as his address.
Dannebohm testified he had been a friend of Tracy's family for 15 years and he
had known Tracy most of her life. At the time of the arrest, Dannebohm lived at a house
north of Great Bend. He kept some clothes at Tracy's apartment and would at times sleep
on the couch for a few hours. When asked whether he had ever stayed the night with her
that summer, he responded, "Not that I recall. I might have but wouldn't have been like
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all night, you know. I probably fell asleep over there for a couple two, three hours or
whatever and left. . . . . She'd cook[] supper and I would eat and fall asleep and leave."
Dannebohm said he came and went from the apartment in June 2015 because
Dannebohm was pregnant, and he was checking on her. For a two-week period, he was at
the apartment daily to bring her items she requested. Sometimes Tracy would meet him at
his vehicle, and Dannebohm would not come inside.
Officer Harlow testified he did not think anyone other than Tracy and her newborn
child lived at the apartment. Officer Bailey—who had responded to a call on a separate
incident at Tracy's apartment—knew Tracy resided at the apartment. Neither Officer
Harlow nor Officer Bailey saw Dannebohm staying at the apartment.
The State argued Dannebohm could not show he had standing to request
suppression of the evidence. In doing so, it emphasized that he did not reside at the
apartment nor did he stay overnight. Dannebohm contended that because he was an
ongoing welcomed guest, he had a reasonable expectation of privacy in Tracy's
apartment. In rebuttal, the State posited that even if Dannebohm was a social guest, he
was absent at the time of the search. This, according to the State, is what the legality of
the search "hinged" on. The court agreed that the issue was whether Dannebohm was
present at the time of the search. It ultimately granted the motion to dismiss, stating "I
think this is, frankly, a gray area, and this is one way to get it resolved. . . . Because I
think the issue is whether the person's there or not, especially in a search of an apartment
or a living complex."
Dannebohm later asked the court to reconsider, citing additional federal caselaw.
And in November 2016, the court heard arguments on the motion. The district court
judge began by stating that he had read Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684,
109 L. Ed. 2d 85 (1990), in its entirety and as a result had changed his mind. The court
found it significant that Dannebohm napped at the apartment, kept some clothing there,
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and was a welcomed guest. Ultimately, the judge held Dannebohm had standing to
challenge the search. He then proceeded to grant the motion to suppress, finding the
application for a search warrant to search the safe was based on the dog's sniff of the safe,
which exceeded the scope of consent. The State filed an interlocutory appeal challenging
both the lower court's standing ruling and its ruling on the merits of the motion to
suppress.
A panel of our Court of Appeals reversed solely on standing. State v. Dannebohm,
No. 116,981, 2017 WL 3447883 (Kan. App. 2017) (unpublished opinion). In doing so, it
acknowledged Dannebohm was a welcomed social guest at Tracy's apartment, but—as
the panel reasoned—because he was not present at the time of the search, he was not a
current guest. 2017 WL 3447883, at *5-6. The panel also held Dannebohm's connection
to the apartment was "not so extensive that he had a reasonable expectation of privacy in
the apartment even when he was not currently a guest." 2017 WL 3447883, at *6. The
panel's holding mooted any discussion of whether the district court erred in suppressing
the evidence. 2017 WL 3447883, at *6.
We granted Dannebohm's petition for review. Our jurisdiction is proper. See
K.S.A. 60-2101(b) ("[A]ny decision of the court of appeals shall be subject to review by
the supreme court.").
ANALYSIS
Dannebohm had a reasonable expectation of privacy in Tracy's apartment.
The only question for us is whether Dannebohm had standing to challenge the
search of Tracy's apartment.
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"'[A] defendant cannot object to the seizure of evidence without proper standing to
challenge the validity of the search. On the issue of standing, the burden is on the
defendant to show an expectation of privacy in the property searched. A defendant may
testify at a suppression hearing to establish his or her standing to challenge a search
without jeopardizing his or her defense at trial.'" State v. Talkington, 301 Kan. 453, 476,
345 P.3d 258 (2015) (quoting State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85 P.3d 711[2004]).
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, protects the "right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures."
State v. Ryce, 303 Kan. 899, 909, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396
P.3d 711 (2017). Section 15 of the Kansas Constitution Bill of Rights provides the same
protections. 309 Kan. at 909; see State v. Zwickl, 306 Kan. 286, 291, 393 P.3d 621 (2017)
(stating this court could extend Section 15's protections beyond the federal guarantees
provided by the Fourth Amendment but has not yet done so). These rights are personal,
and defendants may not vicariously assert them. Rakas v. Illinois, 439 U.S. 128, 133-34,
99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).
Traditionally, to claim Fourth Amendment protections, defendants must establish
that they have a subjective expectation of privacy in the area searched and this
expectation must be objectively reasonable. State v. Robinson, 293 Kan. 1002, 1014, 270
P.3d 1183 (2012); see Talkington, 301 Kan. at 461-62, 477 ("'Where the subjective
expectation of privacy and its objective reasonableness are both well-established [for
example, in a defendant's home], courts tend to state the conclusion of the analysis
without distinguishing the two steps.'"). Courts often state that "the Fourth Amendment
protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19
L. Ed. 2d 576 (1967). "But the extent to which the Fourth Amendment protects people
may depend upon where those people are." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.
Ct. 469, 142 L. Ed. 2d 373 (1998).
7
Following the Court's decision in Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409,
185 L. Ed. 2d 495 (2013), a search occurs "when: (1) the government obtains
information by physically intruding on a constitutionally protected area, i.e., persons,
houses, papers, or effects, 133 S. Ct. at 1414; or (2) invades '"a subjective expectation of
privacy that society recognizes as reasonable."'" Talkington, 301 Kan. at 462 (citing Kyllo
v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 [2001] [citing Katz,
389 U.S. at 361]); see Rakas, 439 U.S. 128, 143 n.12 ("Legitimation of expectations of
privacy by law must have a source outside the Fourth Amendment, either by reference to
concepts of real or personal property law or to understandings that are recognized and
permitted by society.").
In earlier times, "anyone legitimately on premises where a search occurs" had
standing to challenge a search. Jones v. United States, 362 U.S. 257, 267, 80 S. Ct. 725, 4
L. Ed. 2d 697 (1960). But not long after Jones, the Court abandoned this standard,
concluding it created "too broad a gauge for measurement of Fourth Amendment rights."
Rakas, 439 U.S. at 142. In its place, Rakas adopted Katz' reasonable-expectation-of-
privacy standard. 439 U.S. at 143 (stating Katz "provides guidance in defining the scope
of the interest protected by the Fourth Amendment"); see Rawlings v. Kentucky, 448 U.S.
98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) ("[I]n Rakas . . . we abandoned a
separate inquiry into a defendant's 'standing' to contest an allegedly illegal search in favor
of an inquiry that focused directly on the substance of the defendant's claim that he or she
possessed a 'legitimate expectation of privacy' in the area searched.").
Two more contemporary Supreme Court cases inform our understanding of guest
standing. In Olson, 495 U.S. at 98, the Court held that overnight guests have a per se
legitimate expectation of privacy in their hosts' residence. This result, the Court reasoned,
8
"merely recognizes the everyday expectations of privacy that we all share. Staying
overnight in another's home is a longstanding social custom that serves functions
recognized as valuable by society. We stay in others' homes when we travel to a strange
city for business or pleasure, when we visit our parents, children, or more distant relatives
out of town, when we are in between jobs or homes, or when we house-sit for a friend.
We will all be hosts and we will all be guests many times in our lives. From either
perspective, we think that society recognizes that a houseguest has a legitimate
expectation of privacy in his host's home.
"From the overnight guest's perspective, he seeks shelter in another's home
precisely because it provides him with privacy, a place where he and his possessions will
not be disturbed by anyone but his host and those his host allows inside. 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." 495 U.S. at 98-99.
A few years later in Carter, the Court held two guests lacked standing to challenge
a search. There, an officer looked through a gap in a closed window blind and saw two
men packaging cocaine. The woman who leased the apartment permitted the men to use
the apartment in exchange for some of the cocaine. The two men were from out-of-state.
They had never been to the apartment and were in the apartment for only about two and
one-half hours solely to package the cocaine. Not until after the men left the apartment
and were driving away did the officers stop and arrest them.
The plurality held these men lacked a reasonable expectation of privacy in the
apartment because they were engaged in a purely commercial transaction; the men were
not overnight guests; they were there for only a short time; and the men had no prior
relationship with the woman. And unlike in Olson, the Court stated there was nothing to
suggest "a degree of acceptance into the household." 525 U.S. at 90.
9
Justice Kennedy—whose vote was necessary to reach the result—concurred
because the majority's reasoning "is consistent with [his] view that almost all social
guests have a legitimate expectation of privacy, and hence protection against
unreasonable searches, in their host's home." 525 U.S. at 99 (Kennedy, J., concurring).
The most important consideration for Justice Kennedy was whether the defendant could
establish a "meaningful connection" to the location searched. 525 U.S. at 101 (Kennedy,
J., concurring). Under the facts, Justice Kennedy concluded these men could establish
"nothing more than a fleeting and insubstantial connection with [the woman's] home."
525 U.S. at 102 (Kennedy, J., concurring).
Consistent with Carter, the Tenth Circuit Court of Appeals requires a social guest
to show a "'degree of acceptance into the household'" or an "'ongoing and meaningful
connection to [the host's] home'" to establish standing. United States v. Gillom, 274 F.
Supp. 3d 1209, 1215 (D. Kan. 2017) (quoting United States v. Rhiger, 315 F.3d 1283,
1286-87 [10th Cir. 2003]); see Talkington, 301 Kan. at 479 (applying Tenth Circuit
caselaw).
These cases have created a so-called "privacy spectrum." See, e.g., United States
v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000) ("The Court determined that the overnight
guest in Olson and someone legitimately on the premises represented different ends of
the privacy spectrum."). Yet "spectrum" is an imprecise depiction of these holdings to the
extent that it suggests a social guest must be an overnight guest to have a reasonable
expectation of privacy. See, e.g., United States v. Poe, 556 F.3d 1113, 1122 (10th Cir.
2009) ("To have Fourth Amendment standing, a social guest need not have permission to
enter the residence alone or to stay overnight."). To that point, Dannebohm concedes he
was not an overnight guest but maintains he had a reasonable expectation of privacy in
Tracy's apartment.
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With little discussion, our past decisions have simply stated that "[s]ocial guests
have standing to assert a reasonable, subjective expectation of privacy that their host has
in his or her residence." State v. Huff, 278 Kan. 214, Syl. ¶ 6, 92 P.3d 604 (2004). More
recently, we discussed a social guest's standing in greater depth. See Talkington, 301
Kan. 453. In Talkington, officers arrived at the house, looking to arrest an unrelated third
party on an outstanding warrant. Talkington and the host were standing by the house as
the officers arrived. When they saw the officers, the two men ran behind the house but
returned not long after. While one of the officers asked them about the third party, the
other officer walked to the back of the house. On the ground about 3 to 5 feet from the
back door, the officer saw a baggie of methamphetamine partially covered by insulation.
The officers arrested Talkington and the host, and they found a baggie of marijuana
during an inventory search of Talkington's belongings.
In the host's criminal case, 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)
11
("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
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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.
In Spinelli v. United States, 393 U.S. 410, 412, 89 S. Ct. 584, 21 L. Ed. 2d 637(1969), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317,
76 L. Ed. 2d 527 (1983), the Court hinted that a guest's absence at the time of the search
is not fatal to his standing. There, the defendant challenged the constitutionality of a
warrant permitting the search of an apartment he was using to conduct an illegal
gambling operation. The federal district court found Spinelli lacked standing. The Eighth
Circuit reversed and held the magistrate issued the warrant without probable cause.
The Court granted review mainly to discuss the sufficiency of the affidavit. But it
commented in dictum:
"We agree with the Court of Appeals that Spinelli has standing to raise his Fourth
Amendment claim. The issue arises because at the time the FBI searched the apartment in
which Spinelli was alleged to be conducting his bookmaking operation, the petitioner was
not on the premises. Instead, the agents did not execute their search warrant until Spinelli
was seen to leave the apartment, lock the door, and enter the hallway. At that point,
petitioner was arrested, the key to the apartment was demanded of him, and the search
commenced. Since petitioner would plainly have standing if he had been arrested inside
the apartment, Jones v. United States, 362 U.S. 257, 267 (1960), it cannot matter that the
agents preferred to delay the arrest until petitioner stepped into the hallway—especially
when the FBI only managed to gain entry into the apartment by requiring petitioner to
surrender his key." 393 U.S. at 412 n.2.
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See United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 96 L. Ed. 59 (1951) (holding a
defendant who was absent when officers conducted an illegal search of his aunts' hotel
room had standing to challenge the search); see also Brown v. United States, 411 U.S.
223, 229, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973) (holding there is no standing where
"the defendants: [a] were not on the premises at the time of the contested search and
seizure; [b] alleged no proprietary or possessory interest in the premises; and [c] were not
charged with an offense that includes, as an essential element of the offense charged,
possession of the seized evidence at the time of the contested search and seizure.").
Though the Court has since discarded Jones' "legitimately on the premises"
standard, see Rakas, 439 U.S. at 141-48, Spinelli and Jeffers teach us that it is
inconsistent with the Fourth Amendment to permit officers to insulate themselves from a
challenge by simply waiting for a guest to leave the area they wish to search. Cf. 6
LaFave, Search and Seizure § 11.3(b) (5th ed. 2012) ("Rakas, it must be emphasized, did
not question the result in Jones.'"); see Rakas, 439 U.S. at 143 ("[T]he Jones statement . .
. cannot be taken in its full sweep beyond the facts of that case.").
Still, the Court of Appeals cited three cases to support its holding. All are
distinguishable. In State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991), the guest had
stayed overnight on prior occasions, but the host had not seen the guest for two or three
weeks before the search. The guests in Owens v. State, 322 Md. 616, 589 A.2d 59 (1991),
were like the ones in Carter. They drove in from out-of-state and used the host's
apartment as a base of operations to sell drugs. In both cases, the courts held the guests
did not have standing to challenge the search of the hosts' homes. Cortis, 237 Neb. at
103-07; Owens, 322 Md. at 627. But neither of these cases resemble the facts here.
The last case is State v. Francisco, 107 Wash. App. 247, 26 P.3d 1008 (2001).
Francisco hid a murder weapon at his mother's home. Francisco did not live with his
mother, but he sometimes stayed the night at her home. He also washed and stored some
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clothes there. When officers searched the home, Francisco was an overnight guest at his
girlfriend's residence. The Washington Court of Appeals held that his "intermittent use of
his mother's house . . . does not suggest that he had authority to exclude anyone from the
premises or that he could legitimately expect that items he left there would remain
undisturbed." 107 Wash. App. at 254.
The court also found it meaningful that Francisco was not physically present
during the search. Its rationale was that the guest in Olson and the other cases cited by
Francisco were current guests who were present at the time of the search. 107 Wash.
App. at 255 (citing State v. Rodriguez, 65 Wash. App. 409, 828 P.2d 636 [1992]; Rose v.
United States, 629 A.2d 526 [D.C. 1993]). At the same time, the court acknowledged
contrary authority in Commonwealth v. White, 459 Pa. 84, 327 A.2d 40 (1974). In that
case, the Pennsylvania Supreme Court held a guest's
"physical absence from the home at the time of the search does not establish that the
search was not directed at [the defendant] or that it did not violate his right of privacy. An
individual's Effects and Possessions are constitutionally protected from unreasonable
search and seizure as well as his person." White, 459 Pa. at 89.
Recently a federal district court judge found no reason to believe a guest's
reasonable expectation of privacy evaporated the moment he left the household:
"The government also contends that because Edmond was not physically present
at the apartment at the time of the search, he lacked standing. This argument is
unsupported. The Court is unaware of any Supreme Court or Seventh Circuit case—and
the government has cited none—suggesting that one's standing to challenge a search
depends on physical presence at the time and place of the search. Is the government
actually suggesting that if the houseguest in Olson had gone out to get coffee, the
government could have swooped in and searched his room without a warrant or his
consent, on the ground that he wasn't there at that moment? A rule to this effect would
make no sense. A homeowner has standing to challenge the search of his home even if he
15
does not happen to be there at the time of the search; a houseguest who has standing
under Olson likewise can challenge a search even if he does not happen to be there at the
time." United States v. Edmond, No. 15 C 3566, 2016 WL 4179176, at *4 (N.D. Ill. 2016)
(unpublished opinion).
We agree. We have described a social guest as someone who "stand[s] in the shoes
of his or her host." Talkington, 301 Kan. 453, Syl. ¶ 17. Since Tracy would have standing
to challenge the search of her apartment even if she were not present at the time of the
search, see Alderman v. United States, 394 U.S. 165, 178, 89 S. Ct. 961, 22 L. Ed. 2d 176(1969), Dannebohm's absence is not fatal to his ability to challenge the search. Under the
circumstances of this case, Dannebohm's reasonable expectation of privacy in the
apartment did not evaporate the moment he left. To draw such a bright (and easily
manipulatable) line would unjustifiably gut a proper reasonable expectation of privacy
inquiry, which demands a court's full attention to the totality of the circumstances.
One last point bears mentioning. Throughout the case, the parties disputed
Dannebohm's expectation of privacy in the apartment as a whole. The State did not argue
that Dannebohm lacked a reasonable expectation of privacy in the location where the
evidence was found—Tracy's bedroom. This may have affected our analysis. See Carter,
525 U.S. at 88 ("[A] defendant must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is reasonable."); State v. Hill, 127
Ohio App. 3d 441, 449, 713 N.E.2d 73 (1998) (holding that a parolee who lived in his
mother's home did not have a reasonable expectation of privacy in his mother's bedroom
where parolee stored a safe containing drugs); see also 6 LaFave, Search and Seizure §
11.3(a) (suggesting that in Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L.
Ed. 2d 797 [1968], "if the police entry of the premises was lawful and the only conduct
subject to challenge is the entry thereafter into a room as to which the grandson has no
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expectation of privacy, then he well might be found to lack standing to challenge that
conduct intruding exclusively upon the grandmother's privacy"). Given the parties'
arguments, we will not draw this distinction here.
Reversed and remanded to the Court of Appeals for further proceedings consistent
with this decision.
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