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Virginia Court Addresses Expectation of Privacy for House Guests

On Behalf of | Jun 30, 2021 | Drug Crimes, Search and Seizure, Weapons Offenses

A defendant recently appealed his Virginia conviction for possession of marijuana and various firearm offenses. The accused filed multiple motions to suppress, arguing that he had a reasonable expectation of privacy in the residence. On appeal, the court reviewed the evidence the defendant presented at his suppression hearing.

According to the record, police officers discovered the defendant’s location and attempted to serve outstanding arrest warrants. The home belonged to the mother of the defendant’s minor daughter; the defendant did not own or rent the home. When the defendant did not open the door for law enforcement, the officers entered the residence. The officers did not find the accused, but after detecting the smell of marijuana, they searched the residence and found him hiding near a shed.

The defendant argued that because he did not live at the home, the officers could not “enter and search the home of a third party” under a warrant for the defendant. The Commonwealth argued that they believed the accused lived at the home with the mother of his child. In the alternative, the Commonwealth argued that the defendant could not assert the “vicarious Fourth Amendment” rights of a third party.

On appeal, the court discussed how the Fourth Amendment applies to owners, overnight guests, and visitors. The court explained that the amendment applies to individuals, not society as a whole. As such, the rights are personal and cannot be vicariously asserted. Thus, a person cannot assert Fourth Amendment rights violation if they were aggrieved by an illegal search and seizure secured through evidence retrieved through the search of a third person’s property. However, the inquiry is not whether the person is a homeowner, but whether they have a “reasonable expectation of privacy” in the place or item searched.

The United States Supreme Court has explained that overnight guests have a legitimate expectation of privacy in their host’s home. However, most critically, the expectation does not automatically flow to one who is permissibly on the premises but not an overnight guest. In this case, the defendant argued that his testimony established that he was a permissible overnight guest. The court questioned the defendant’s credibility and found that his testimony contained substantial inconsistencies. The appellate court explained that they are bound by the trial court’s findings of historical fact, and as such, their findings did not compel a plainly wrong error.

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