On August 21, 2020, the Eleventh Circuit Court of Appeals decided the United States v. Bossio[i], which serves as an excellent review of the law regarding when a guest at a residence has reasonable expectation of privacy at the residence and therefore, Fourth Amendment protection. The relevant facts of Bossio, taken directly from the case, are as follows:
The events underlying this appeal began when the Phenix City Police Department (PCPD) received a 911 call early in the morning about a suspicious vehicle parked in the driveway of 1804 Timberland Drive—the caller said that no one was supposed to be at home at the time. Around 5:00 a.m., Officers Cutt and Bishop of the PCPD responded; Officer Cutt arrived on the scene first. The lights were off at the home, and Officer Cutt saw a car parked in the adjacent driveway. Because he was concerned that the car he saw was the suspicious vehicle mentioned in the 911 call—or that it could be related to a break-in—Officer Cutt decided to check it out. He walked up the driveway (there wasn’t a separate sidewalk from the street), and once he could make out the tag number—about three quarters of the way up the driveway, 5-10 feet from the back of the car—he radioed it in to dispatch. The dispatcher checked the tag number [*3] and discovered that the car had been reported stolen.
Once Officer Bishop arrived at the scene, she and Officer Cutt approached the vehicle. They saw Bossio asleep in the driver’s seat, and Officer Cutt knocked on the window to wake him up—he then asked Bossio to unlock and open the driver’s side door. When Bossio opened the door, Officer Cutt saw a bag of meth in Bossio’s lap. The officers then handcuffed Bossio and removed him from the car, which led to the discovery of a loaded, Derringer .22 caliber handgun in Bossio’s seat. The officers were subsequently informed that there was a warrant for Bossio’s arrest for theft by taking of a motor vehicle. Officers Cutt and Bishop searched Bossio and found $855 in his pants pocket. They also conducted an inventory search of the rental car that turned up 12 individually packaged bags of meth, multiple cell phones, and a digital scale. The owner of the home—Kim Shearer—told law enforcement that she had not known that Bossio was in the driveway, that she knew him and was “very afraid of him, very scared of him,” and that she hadn’t given him permission to be at her home and didn’t want him there.[ii]
Bossio was indicted under federal law for drug and weapons offenses. He filed a motion to suppress and argued that the police trespassed into the constitutionally protected curtilage of the driveway of the Timberland Drive residence, and as such, all evidence derived from such Fourth Amendment violation should be suppressed. The magistrate issued an opinion that was adopted by the district court denying Bossio’s motion to suppress. The magistrate opined that Bossio lacked a reasonable expectation of privacy at the Timberland Drive residence and as such, could not assert rights that belonged to someone else. Bossio appealed the denial of the motion to suppress to the Eleventh Circuit Court of Appeals.
The issue that we will discuss relates only to the motion to suppress. Specifically, Bossio argued that the police violated the Fourth Amendment by trespassing onto the curtilage of the Timberland Drive residence and that all evidence derived from this Fourth Amendment violation should be suppressed.
The Eleventh Circuit first discussed the fact that Fourth Amendment rights belong to people who possess a reasonable expectation of privacy in the area that was searched. The court further noted that if a person does not have reasonable expectation of privacy at a particular location, that person cannot assert a violation of their rights because it is not their rights that were violated. Specifically, the court stated
But “Fourth Amendment rights are personal rights which, like some other constitutional rights may not be vicariously asserted.” Brown v. United States, 411 U.S. 223, 230, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). Accordingly, as a general matter, a person who claims a violation due to a “search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Even so, a person “may nonetheless have a reasonable expectation of privacy in that place by virtue of his [*9] or her relationship with” it. United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999).[iii]
Second, the court of appeals discussed the fact that in certain situations, a guest at a residence may have a reasonable expectation of privacy. For example, such is the case with overnight guests. However, there are a variety of factors to consider in reaching a decision on whether a guest has a reasonable expectation of privacy. The court stated
As relevant here, “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.” Minnesota v. Carter, 525 U.S. 83, 89, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). A “mere guest or invitee,” however, does not have Fourth Amendment standing to challenge a search. United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir. 1984) (quotation omitted). Although “legal ownership is not a prerequisite for a legitimate expectation of privacy” in a dwelling, United States v. Garcia, 741 F.2d 363, 365-66 (11th Cir. 1984), a Fourth Amendment claimant must demonstrate that he has “an unrestricted right of occupancy or custody and control of the premises,” Baron-Mantilla, 743 F.2d at 870. Factors that courts have considered to determine whether a person has a reasonable expectation of privacy in the home of another include whether he has personal belongings stored there, Garcia, 741 F.2d at 366, whether he was an invited overnight guest, Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990), and whether he has a “measure of control and ability to exclude others,” Chaves, 169 F.3d at 691.[iv]
While the homeowner of the Timberland Drive residence called the police and later told the officers that she knew Bossio, was scared of him, and did not want him at the residence, Bossio argued that a tenant at that residence invited him there to assist with an issue with the tenant’s girlfriend. Bossio said that when he arrived, the tenant that invited him had driven his girlfriend to the hospital so he was lawfully waiting for the tenant’s return. Bossio also argued that he had spent the night as an “overnight guest” on previous occasions, although he was not an overnight guest the night of this incident.
The court of appeals applied the facts of Bossio’s case to the factors listed above to determine if Bossio had a reasonable expectation of privacy at the Timberland Drive residence. The court noted that Bossio did not have a key to that residence, did not store possessions at that residence, and did not have the right to exclude people from the residence. As such, the court held that Bossio lacked the necessary control of the residence required to assert a reasonable expectation of privacy and Fourth Amendment protection.
Thus, because Bossio did not have Fourth Amendment protection related to the privacy of that residence, he could not assert a violation of the Fourth Amendment by the officer’s act of walking up the driveway and looking into the car. The court then held
Bossio has not established Fourth Amendment standing to challenge this search, as he lacked a sufficient interest in the Timberland Drive residence to establish a legitimate expectation of privacy there.[v]
Therefore, the court of appeals affirmed the denial of Bossio’s motion to suppress.
[i] No. 19-13193 (11th Cir. Decided August 21, 2020)
[ii] Id. at 2-3
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9 (emphasis added)
[v] Id. at 10