Social guest has expectation of privacy, even if not present

Donald E. Anderson, II won in State v. Dannebohm, No. 116,981 (Kan. July 6, 2018), reversing the COA's decision finding that Mr. Dannebohm did not have standing to raise a Fourth Amendment challenge during a Barton County drug prosecution. Officers searched an apartment where Mr. Dannebohm had a safe and found methamphetamine. But the apartment was not his and Mr. Dannebohn did not live there. Judge Svaty suppressed the evidence as fruit of an illegal search. The COA reversed holding that Mr. Dannebohm did not have standing to make a Fourth Amendment challenge. The COA reasoned that while Mr. Dannebohm was a welcomed social guest in the apartment, he was not present at the time of the search and, therefore, not a current guest. The KSC held that Mr. Dannebohm showed his had a sufficient expectation of privacy in the apartment to allow him to make the claim:

Tracy and Dannebohm knew each other for about 10 years, and they shared a close, sibling-like relationship. 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. 

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, 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.\

. . . .

We have described a social guest as someone who “stand[s] in the shoes of his or her host.” 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 (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.

As a result, the KSC remanded to the COA for a ruling on the merits of the state's appeal.

[Update: on remand, the COA affirmed Judge Svaty's suppression order, as blogged about here].