United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-1924

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United States of America, *

*

Appellee, *

*

v. *

*

Michael Wayne Erp, *

*

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United States of America, * [UNPUBLISHED]

*

Appellee, *

*

v. *

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Robert Stone, *

*

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.
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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
 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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U.S.C. § 2. They now challenge the district court's denial of

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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
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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.