UNITED STATES of America, Appellant, v. Marquis AIKEN, Defendant, Appellee, 877 F.3d 451

STAHL, Circuit Judge. In this criminal appeal, we must decide whether the Defendant, Marquis Aiken (“Aiken”), had a reasonable expectation of privacy under the Fourth Amendment in the motel room where he was at the time of a police search of the premises. The district court ruled in Aiken’s favor. The government timely filed this appeal. After careful review, we reverse and remand. I.

FACTUAL BACKGROUND On November 7, 2014, two state troopers and members of the Maine Drug Enforcement Agency (“MDEA”) received a tip that individuals who were in room 216 at the Super 8 Motel in Lewiston, Maine had with them large bags containing crack, cocaine or heroin. The Super 8 Motel was known to the agents as a common stopover for out-of-state gun and drug traffickers. At approximately 9:00 AM, MDEA agents began knocking on the door to room 216. Although no one from room 216 responded to their repeated knocks, an unidentified man partially opened the door to room 218.

Although room 218 smelled of marijuana, the agents informed the man that they were not there for him. After a minute or two, the door to room 218 opened again. A man subsequently identified as Joshua Bonnett (“Bonnett”) stood by the door and Aiken stood five to ten feet behind him. Aiken was barefoot and only wearing shorts. The agents noticed “one particular bed look[ed] like the sheets and the comforters were pulled back and the other one liked [sic] like it had just been made.” One of the agents recognized Aiken from a relatively recent heroin trafficking arrest.

Aiken’s presence raised suspicions that “there was possibly more going on inside that room besides marijuana.” The agents asked both men to step out of the room. When neither man exited the room, the agents entered, conducted a security sweep and observed what appeared to be a bag containing marijuana on one of the beds and a digital scale dusted with white powder on a nightstand between the two beds. One of the agents opened the top drawer of the nightstand and discovered a bag containing one-quarter to one-half kilogram of a substance that appeared to contain cocaine base.

The agents subsequently obtained a search warrant, and as a result of the evidence seized in the search, the government charged Aiken and Bonnett with possession with intent to distribute a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting such conduct, in violation of 18 U.S.C. § 2. Both Aiken and Bonnett filed motions to suppress all evidence seized as a result of the search. Originally, the magistrate judge heard the evidence and determined that neither Bonnett nor Aiken could challenge the search of the motel room.

On de novo review, without hearing any new evidence, the district court reversed the magistrate’s decision. The district court found that both Defendants had a reasonable expectation of privacy in the motel room and could contest the search as a violation of their Fourth Amendment rights. The district court determined 'that Jah-rael Browne (“Browne”) had rented room 218 at the Super 8 Motel with another person, Bonnett, and that Aiken stayed in the room with Bonnett.

The district court explained that “Bonnet was Browne’s traveling companion from Massachusetts to Maine” and Browne rented the room accompanied by another person who appeared from a video to be Bonnett. The motel registration reflected two persons staying in the room; however, only Browne’s name was included on the registration form. In addition to Bonnett and Browne traveling together, Browne’s license was found in the motel room, “further suggesting a connection between Browne and Bonnett.” Bonnett was also in possession of the room key at the time the agents entered the room.

At 9:00 AM, the appearance of the- room and the occupants “were consistent with two occupants— Bonnett and Aiken—having slept in the room and, therefore, having occupied the room for more than a brief period.” Post-arrest statements made by Aiken to his mother “confirm that the room was Bon-nett’s room and that Aiken stayed there with Bonnett’s knowledge.” Finding that both Bonnett and Aiken could challenge the search, the court ruled that the search violated the Fourth Amendment and granted Aiken and Bon-nett’s motions to suppress.

The government appealed the district court’s decision as to Aiken’s expectation of privacy. II. STANDARD OF REVIEW We review the district court’s findings of fact for clear error and its conclusions of law de novo. See United States v. Carty, 993 F.2d 1005, 1008 (1st Cir. 1993). The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend.

IV. “To prevail on a claim that a search or seizure violated the Fourth Amendment, a defendant must show as a threshold matter that he had a legitimate expectation of privacy in the place or item searched.” United States v. Battle, 637 F.3d 44, 48 (1st Cir. 2011) (emphasis added) (citing Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990)). “The burden of proving a reasonable expectation of privacy lies with the defendant.” United States v.

Mancini, 8 F.3d 104, 107 (1st Cir. 1993). “In order to make such a demonstration, the defendant must show both a subjective expectation of privacy and that society accepts that expectation as objectively reasonable.” Id. III. DISCUSSION In determining that Aiken had a reasonable expectation of privacy in the motel room, the district court first determined that Bonnett was a guest in the room with Browne. From there, the court inferred that Aiken was an invited guest of Bon-nett.

On appeal, the government argues that the district court erroneously found that Aiken was a guest of Bonnett and further contends that Aiken did not demonstrate that he had a reasonable expectation of privacy in the room. We-address the two issues in turn. A. Aiken's Guest Status To the extent the district court found that Aiken' was a guest because Bonnet invited Aiken into the room, the district court did not clearly err, Aiken was in the motel room along with Bonnett when the agents conducted the search.

Based on the appearance of the two beds in the motel room and Aiken’s state of undress at 9:00 AM, the district; court ¡concluded that Aiken “slept in the room” for “more than a brief period.” It was not improper for the court to draw the inference that Bonnett had invited Aiken into the room. , ; We pause here to emphasize that we use the term- guest in'Accordance with -the district court’s finding, -made entirely by inferences, without direct evidence showing that Bonnett invited Aiken into the motel -room.

In fact, Bonnett’s affidavit, which he provided to ■ the court in support "of his motion to suppress, did not even mention Aiken. It would be inappropriate for this Court to make ¡any other inferences to support Aiken’s reasonable expectation of privacy, in light of the fact that he came forward with no evidence on a motion that he had the burden, to carry. As such, the term guest, at least in this case, does not carry with it any Fourth Amendment protection unless and until the defendant has satisfied his burden of proving a reasonable expectation' of privacy. See Mancini, 8 F.3d at 107.

An invitation to be present in a location does not automatically confer Fourth Amendment privacy protection. See Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (“[T]he fact that they were legitimately on [the] premises ... is not determinative of whether they had a legitimate expectation of privacy.”) (alteration in original) (internal citations omitted); see also United States v.

Irizarry, 673 F.2d 554, 556 (1st Cir. 1982) (“The hotel room here was registered to [Defendant 1 but Defendant 2], however, offered no evidence of any personal- interest in the room beyond his being ‘merely present.’ ”). Aiken’s guest ofa guest status does not resolve the question of whether he had a reasonable expectation of privacy in the room. Therefore, we turn to the government’s second argument.

B, Aiken’s Reasonable Expectation of Privacy In finding that Aiken had a reasonable expectation of privacy, such that he could challenge .the search of the motel room, the district court found that Aiken was a guest who spent more than a brief period of time in the room.

On appeal, however, the government challenges whether Aiken met his burden.- Although the district court did not clearly err in finding that Aiken was Bonnett’s “guest”— that is, Aiken was invited by Bonnett to sleep in the motel room for “more than a brief period,” it incorrectly inferred that Aiken had an objectively reasonable expectation of privacy based on these facts alone. As previously mentioned, the burden is on the defendant to show that he had a reasonable expectation of privacy in the area searched. Mancini, 8 F.3d at 107.

Here, rather than testify or put on any evidence, Aiken relied on the government’s evidence to satisfy his burden. On appeal, Aiken argues that as a guest who slept in the room, he “had an actual, subjective expectation of privacy ... that was objectively reasonable.” This, argues Aiken, is enough to meet his burden. We do not agree. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the Supreme Court considered whether an individual who was legitimately on the premises for the purpose of bagging cocaine had an expectation of privacy in an apartment.

Despite the permission and presence of the apartment’s occupant, the Court found that “the purely commercial nature of the transaction ... the relatively short time on the premises, and the lack of any previous connection between respondents and the householder,” resulted in a lack of Fourth Amendment protection. Id. at 91,119 S.Ct. 469. Therefore, it is appropriate for us to consider the (1) the nature of the defendant’s visit, (2) his length of stay, and (3) his relationship to the host in analyzing a defendant’s reasonable expectation of privacy.

As in Carter, the evidence before the district court supports that Aiken was in the room for business purposes, specifically drug trafficking. One of the agents who executed the search testified that Aiken’s presence in the room made him wary that the men were engaged in drug trafficking. A scale was on display and looked as if it had been recently used and the motel was known to the agents as a location commonly used by drug traffickers. Aiken provided no evidence to support that his visit was for non-business purposes.

As to Aiken’s length of stay, the district court found that Aiken slept in the room and was present for “more than a brief period,” however, the district court made no factual, findings as to the amount of time Aiken spent in the room. All that the evidence showed was that Aiken was present in the room for less time than Bonnett because the video evidence depicted only two men checking into the motel and the district court concluded one of those men was Browne, to whom the room was registered, and the other was likely Bonnett.

On the other hand, Aiken provided no evidence as to when he arrived at the motel or the room. ' Additionally, Aiken put forth no evidence regarding how he knew the two men. actually associated with the motel room. The agents testified that when they found the drugs' in the drawer, Bonnett made a comment to Aiken, “We should have put it where we usually do.” While this statement indicates that Aiken and Bonnett may have known -each other before this encounter, it also shows that whatever the relationship was, it was likely for the business purpose of trafficking drugs.

Further, there is no indication that Aiken had a relationship with Browne, the legal renter of the motel room, or even that he had stayed there with Browne’s permission. Aiken could have easily supplied this evidence, l?ut he did not. We acknowledge that this casé is not easily resolved by the rules set forth in Carter because the district court made a finding that Aiken slept in the motel room for longer than a brief period of time, in contrast to Carter, where the Court explained that defendants were only present for approximately two-and-a-half hours. See also United States v.

Larios, 593 F.3d 82, 93 (1st Cir. 2010) (no reasonable expectation of privacy for “fleeting” visitor to motel room); United States v. Rodriguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009) (no reasonable expectation of privacy for a “casual visitor for a brief period”). Further, the government, ironically, put forth evidence in which Aiken told his mother that he “spent the night” in the motel room, further distinguishing the case from Carter.

While we recognize the factual differences between this case and Carter, the dissent completely ignores the precedent set out by the Supreme Court in Carter, and instead relies squarely on Olson. But, therein lies the problem. While the district court found that Aiken slept in the room, there.was no finding that he was an “overnight guest” within the meaning of Minnesota v. Olson. There is a qualitative difference between an overnight guest and drug trafficker who is present inside a motel room and falls asleep for an unknown period of time.

Further, the dissent suggests that the inference of Aiken’s overnight guest status should be drawn in Defendant’s favor; however, the Court can only make such inferences if they are reasonable. See United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999). In light of all of the inferences the district court already made in Aiken’s favor, it is not reasonable for this Court to assume that sleeping in a hotel room, for more than a brief period of time, means that Aiken was an overnight guest as envisioned by the Supreme Court in Olson.

Ijlad the Supreme Court meant to encompass all guests under the Olson analysis, it would have said so, but as the dissent itself notes, the overnight guest relationship envisioned by Olson is imbued with an expectation of privacy because it is a “longstanding social custom that serves functions recognized as valuable by society.” 495 U.S. at 96, 110 S.Ct. 1684 (emphasis added). And the examples of overnight guests provided in Olson include “houseguests,” and visiting “parents, children, and distant relatives.” Id. at 97, 110 S.Ct. 1684. Aiken does not fall into this category.

If there remains any doubt as to Aiken’s reasonable expectation of privacy in the motel room, we analyze further to emphasize that Aiken failed to meet his burden. Aiken was not registered as a guest in the hotel room and he did not have any possessions in the room besides the sneakers he was trying to put on when the agents arrived and his t-shirt. There were no indicia present in the hotel room supporting Aiken’s overnight-guest status, such as an overnight bag or toiletries.

Although Aiken’s bus ticket was found in the motel room, the presence of a ticket and the few articles of clothing being worn by Aiken fail to show any expectation of privacy. Further, while Bonnett had a key to the room on his person, Aiken did not have a key to the motel room. If he had exited, he would have been unable to return, unless Bonnett allowed him to do so. Aiken may have been able to open and close the door, but it is unclear if he could do this without Bonnett’s permission. See United States v.

Gomez, 770 F.2d 251, 254 (1st Cir. 1985) (“Thus, there was no evidence that appellant had possession or control of the premises. Nor did [he] provide evidence of his ability to exclude others from use of the property.”). It was Aiken’s burden to demonstrate otherwise. While Aiken provided no evidence as to his expectation of privacy, the government presented evidence showing Aiken distancing himself from the room, explaining to his mother that the room was not his and he was just visiting. See United States v.

Zapata, 18 F.3d 971, 978 (1st Cir. 1994) (“[0]ne who disclaims ownership is likely to be found to have abandoned ownership.”). Because we find that Aiken failed to demonstrate an objectively reasonable expectation of privacy, we do not need to analyze Aiken’s subjective expectations. . We cannot find that Aiken had a reasonable expectation of privacy in the motel room. It remains unclear what purpose Aiken had in room-218, how long he stayed in the room, how long he slept in the room and how well he knew the occupant.

While certain inferences can be drawn from the testimony provided, these inferences alone cannot satisfy Defendant’s burden.-! We find that sleeping in a motel room for longer than ⅜ brief period of time, without more,- is insufficient to warrant Fourth Amendment protection. IV. CONCLUSION ' Aiken, at best a guest of a guest in room 218 at the Super 8 Motel, did not have a reasonable expectation of privacy in the motel room. For all the reasons described above, we reverse the decision of the district court and remand for 'further proceedings. . The agent “believed somebody was actively smoking in the room.” .

That arrest occurred in April 2014 for.possession or trafficking heroin, however, the case was later dismissed. . Other circuits have analyzed a defendant’s reasonable expectation of privacy by focusing on the hotel guest’s designation.- For instance, in the Tenth Circuit, an unregistered visitor was found to lack a subjective expectation of privacy in a motel room because he was aware of-the motel’s policy that forbade persons other than registered guests from using the motel rooms, United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995); see also United States v.

Carr, 939 F.2d 1442, 1444-46 (10th Cir. 1991) (notwithstanding a three-week stay/an unregistered resident failed’to establish a reasonable expectation of privacy in a motel room in which the registered guest was not present and the unregistered resident presented no evidence connecting him to the room or the registered guest); but see United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008) (assuming in dicta an unregistered guest had a reasonable expectation of privacy in a motel room after a registered guest rented two rooms and informed the motel manager that "my friend is going to come in"). .

Tjie dissent states that the "undisputed record evidence shows that Aiken stayed in the room overnight.” This is an unreasonable inference. The dissent relies on several cases which discuss “reasonable inference drawing,”. See e.g., United States v. McGregor, 650 F.3d 813, 823-24 (1st Cir. 2011); United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999). In certain circumstances, perhaps when the Defendant attempts to satisfy his burden or put on evidence to support his claim, inference making of the type envisioned by the dissent may be reasonable.

Here however, Aiken provided no evidence to satisfy his burden, and the district court made no factual findings which demonstrate that Aiken spept the night in the room, therefore, it is impossible for this Court to reasonably infer that Aiken was an overnight guest with an ■ expectation of privacy. The dissent also argues that Aiken could satisfy his burden solely by relying on the Government’s evidence—specifically, the transcript of Aiken’s call to his mother. We need not address the merits of this contention because notwithstanding the phone call, Aiken still fails to satisfy his burden.

Simply put, the district court made six factual findings, all of which were made from inferences, and these findings, taken as a whole, are insufficient to show that Aiken had an objectively reasonable expectation of privacy in the motel room. The district court merely found that Aiken had slept in the room for "more than a brief period” at Bonnett’s invitation. That is not a finding that he was an overnight guest within the meaning of Minnesota v. Olson, nor is it even a finding that he had spent the whole night in the room. And as explained above, any "inference” to the contrary is unreasonable. .

In addition to the factors we consider below, we note that other circuits undergo similar analyses in the context of Fourth Amendment protection. See United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008) (finding no legitimate expectation of privacy where the record failed to indicate the length of time the defendant had spent in the hotel room, whether he had a key, and whether he had personal belongings there). .

While the two agents' testimony conflicted as to who opened the door to room 218, the district court stated: "Pappas saw defendant Joshua Bonnett standing in the doorway ... [standing behind Bonnett inside the room was ... Aiken.” . In support of its argument, the dissent relies on this Circuit’s recent decision in United States v. Bain, 874 F.3d 1 (1st Cir. 2017), where the Court found that a Defendant, who was an overnight guest at his girlfriend's apartment, had a "sufficient connection with [the apartment] to mount an unfettered challenge to the search of that unit.” Id. at 11.

Bain is patently distinguishable on both legal and factual grounds. First, Bain presents an entirely separate legal issue from this case: whether an overnight guest in a home has a property-based Fourth Amendment right to challenge the police’s use of a key to open his host’s front door. Aiken is not claiming here that the police trespassed upon his curtilage. Rather, at issue are his privacy interests inside the motel room, and whether he provided sufficient evidence to make a threshold showing that he had reasonable expectation of privacy. Bain thus has no bearing on our holding.

Furthermore, Bain is factually distinguishable from this case because Bain met his burden in showing that he had a reasonable expectation of privacy as an overnight guest. Bain offered evidence of his social relationship to the host and purpose of his visit, beyond drug activity. Several forms of identification belonging to Bain were found in the apartment, including an auto insurance card, a MassHealth card and a AAA card. Id. at 25. Bain’s girlfriend rented the apartment and Bain appeared to keep personal belongings in the unit, including several boxes of sneakers and a parking ticket in his name.

Id- Agents also observed Bain’s car outside the apartment complex on several occasions. Id. at 9. Here, Aiken’s lack of evidence is fatal to his case. The Court’s statement in Bain, "[u]nder Supreme Court precedent, Bain’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable,” does not vitiate the requirement that the defendant bears the burden of establishing he is an overnight guest as contemplated by Minnesota v. Olson.

Aiken bears the burden of establishing a reasonable expectation of privacy in the hotel room, and Aiken failed to establish that he was an overnight guest within the meaning of Olson. Therefore, Bain has no bearing on our holding. . The government provided recorded calls made by Aiken to his mother from the Bureau of Prisons. In one of the calls, Aiken stated: "Mom ... [tjhat’s what I kept telling you .., I did not have ,a room.”