IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116, 981

S TATE OF K ANSAS , Appell ant ,

v.

B RANDON A LVIN D ANNEBOHM ,

Appe l l ee

.
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. D efendant s may testify at a suppression hearing to establish their standing to challenge a search without jeopardizing their defense at trial.

2.
To hav e 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Review of the judgment of the Cou rt of Appeals in an unpublished opinion filed August 11, 2017. Appeal from Barton D istrict C ourt; R ON S VATY , judge . Opinion filed July 6 , 20 18. 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, w ere with h im on the brief for appell ant

.2

Donald E. Anderson II , of Anderson, Bristow, & Anderson Law Office , of Ellinwood, argued the
cause and was on the brief for appell ee

.

The opinion of the court was delivered by

S TEGALL , J.: L aw enforcement officers searched Alexis Tracy's apartm ent 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 th e 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 evidenc e. T he Stat e 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

.

F ACTUAL AND P ROCEDURAL B ACKGROUND

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 pres ent at Tracy's apartment w hen the officers arrived. Eventually, the apartment manager helped Officer Harlow get in touch with Tracy over the phone. He3

told Tracy t hey were looking for Dannebohm and believed he was inside her apartment. Tracy

— who was in Gre at 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. After wards , 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
h er 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 t he apartment. Dannebohm was not inside. But resting on a bed was "a glass pipe with white
and burnt residue

. " I n 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 t he same blue cooler
Dannebo hm carried into the house that morning. Somewhere in the apartment the office rs 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 t he pipe and the safe
but not the duffle bag. Rather than trying to open the safe, they t ook 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 . W hen
asked if she could access its contents , she responded, "I'm pretty sure the PIN was written4

dow n somewhere but, I mean, I never really got into it." She said the safe was
occasiona lly left open.

The State charged Dannebohm with possession with intent to distribute methamphetamine and no drug tax stamp . Before trial, h e moved to suppress the
eviden ce 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, t he 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 o n 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 n ot there.

At the same time, Tracy stated on cross

- examination that she was the only person
on the le ase. Dannebohm paid no portion of th e 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 list ed her apartme nt 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 arres t, 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 like5

all night, you know. I probably fell asleep over there for a couple two, t hree hours or
whatever and left. . . . . S he'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 h er ite ms 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 c all on a separate incident at Tracy's apartment

— knew Tracy resided at the apartme nt. Neither Officer Harlow nor Officer Bailey saw Dannebohm staying at the apartment.

T he State argued Dannebohm could not show he had standing to req uest 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, a ccording 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 . I t 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 a partment or a living complex."

Dannebohm later asked the court to reconsider, citing additional federal caselaw.
And i n November 2016, the court heard a rguments on the motion. The district court judge began by stating that he had read Minnesota v. O lson , 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,6

and was a welcomed guest. Ultimately, the ju dge 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 S tate filed an inter locutory 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 discus sion of whether the district court erred in suppressing
the evidence. 2017 WL 3447883, at *6

.

We g ranted Dannebohm's petition for review . O ur 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.").

A NALYSIS

Dannebohm had a reasonable expectation of privacy in Tracy's apartment.

The only question for us is whether Dannebohm had standing to challenge t he search of Tracy's apartment.7

" ' [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 es tablish his or her standing to challenge a search without jeopardizi ng 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 Amendme nt 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 protection s. 309 Kan. at 909 ; see State v. Zwickl , 306 Kan. 286, 291, 393 P.3d 621 (2017) (stat ing 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, defendant s must establish
that they have a sub

j ective 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 (" ' W here the subjective expectation of privacy and its objective reasonableness are both well

- established [ for example, in a defendant's home ] , courts tend to sta te 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)

.8

Following the Court's decision in Flor i da 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 priv acy that society recognizes as reasonable."' " Talkington , 301 Kan. at 4 62 (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, 14 3 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 , "a nyone 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 n ot long after Jones , the Court abandoned this standard , concluding it created "too broad a gauge for measurem ent of Fourth Amendment right s

. "
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 int erest 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 guest s h a ve a per se legiti mate expectation of privacy in the ir hosts' residence

. This result, the Court reasoned,9

" 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 re latives 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 legitima te 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 throug h a gap in a closed window blind and saw t wo 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

.

T he plurality held t he se men lacked a reasonable expec tation 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

.10

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 coul d establish a "meaningful conne ction" to the location searched

. 525 U.S. at 101 (Kennedy, J., concurring). U nder the facts, Justice Kennedy concluded the se men could establish "nothing more than a fleeting and insubstantial connection with [the woman' s ] ho me."
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) ( quo ting United States v. Rhiger , 315 F.3d 1283 , 1286

- 87 [10th Cir. 2003]); see Talkington , 301 Kan. at 479 (applying Tenth Circuit caselaw).

The se 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."). Y et "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 ha d a reasonable expectation of privacy in Tracy's apa rtment

.11

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.3 d 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 ho use , 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, t he 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
d uring an inventory search of Talkington's belongings

.

In the host's criminal case, t h e 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 time s

. 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. O n 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 stro nger 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)12

("H eath 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 t he apartment daily

. Tracy thought of him as a welcomed guest . She allowed him to stay at the ap artment when she was absent . And he kept a duffel bag with his clothing at the apartment

.

What is more , Dannebohm at times slep t on the couch for hours at a time

. T hough
he was not an overnight guest, th e fact that Tracy permitted him to nap there after he ate
dinner sug g ests a significant degree of acceptance in to 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 . O n 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, t he court held Rhiger ha d standing to challenge the sear ch :

"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, alth ough 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 "degr ee of acceptance into the household" as well as a "meaningful connection" to Tracy's apartment. But the Court of Appea ls believed that because Dannebohm was not present at13

the time of the search , he was not a current guest of Tracy's. Dannebohm , 2017 WL
34 47883, 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. T he panel must have thought D annebohm 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 standin g . There , the defendant challenged the constitutionality of a warrant permitting the search of an apartment he was using to conduct an illegal gambling operat ion. The federal distr ict court found Spinelli lacked standing. T he 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 w as 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

.14

See United States v. Jeffers , 342 U.S. 48, 52, 72 S. Ct. 93, 96 L. Ed. 59 (1951) (holding a
defendant w ho was absent when office rs 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, 22 9 , 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 cha rged, possession of the seized evidence at the time of the contested search and seizure. ").

Though the Court has since discarded Jones ' "legitima tely on the premises" standard, s ee Rakas , 439 U.S. at 141

- 48 , Spinelli and Jeffers teach us that it is
incon sistent 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 b eyond the facts of that case.")

.

Still , the Court of Appeals cited three cases to support its holding . A ll 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. a t 103

- 07; Owens , 322 Md. a t 627. But n either of these cases resemble the facts here.

The las t 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 wa shed and stored some15

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 "intermi ttent 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 meani ngful 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 acknowledge d

c ontrary authority in Commonwealth v. White , 459 Pa. 84, 327 A.2d 40 (1974)

. In that

case, the Pennsylvani a Suprem e 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 constitut ionally 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 evaporate d 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 gover nment 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 th e search of his home even if he16

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, 20 16 WL 4179176, at *4 (N.D. Ill. 2016) (unpublished opinion).

We agree. W e 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 searc h 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. U nder the
circumst ances 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 , 12 7 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 Seizu re § 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 no17

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 r emanded to the Court of Appeals for further proceedings consistent
with this decision.