          United States Court of Appeals
                      For the First Circuit


No. 17-1036

                     UNITED STATES OF AMERICA,

                            Appellant,

                                v.

                          MARQUIS AIKEN,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Jon D. Levy, U.S. District Judge]


                              Before

                    Lynch, Stahl and Thompson,
                          Circuit Judges.


     Benjamin M. Block, Assistant United States Attorney, with
whom Richard W. Murphy, Acting United States Attorney, Margaret D.
McGaughey, Assistant United States Attorney were on brief, for
appellant.
     Vivian Shevitz for appellee.


                         December 18, 2017
            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.1

            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


     1   The agent "believed somebody was actively smoking in the
room."


                                  - 2 -
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.2   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.




     2 That arrest occurred in April 2014 for possession        or
trafficking heroin, however, the case was later dismissed.


                              - 3 -
              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    Jahrael   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


                                       - 4 -
more than a brief period."    Post-arrest statements made by Aiken

to his mother "confirm that the room was Bonnett'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 Bonnett'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 (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




                               - 5 -
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 Bonnett.       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


                                 - 6 -
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, (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.'").3        Aiken's guest of a guest status


      3Other 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


                                  - 7 -
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




rooms. United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1998);
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").


                                - 8 -
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 (1998), the Supreme

Court considered whether an individual who was legitimately on the

premise 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.      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


                                      - 9 -
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




                                    - 10 -
permission.    Aiken could have easily supplied this evidence, but

he did not.

            We acknowledge that this case 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 the majority acknowledges 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


                                    - 11 -
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).4    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



     4
       The 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 spent 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.


                              - 12 -
Olson.    Had 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 (emphasis added).                 And the

examples      of     overnight        guests     provided      in    Olson       include

"houseguests,"        and   visiting      "parents,      children,        and    distant

relatives."        Id. at 97.    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.5

              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




      5In 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).


                                        - 13 -
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.6

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.7


      6While 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 . . . [s]tanding
behind Bonnett inside the room was . . . Aiken."

      7In 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


                                  - 14 -
           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.8      See United States

v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994) ("[O]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.




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.

      8The government provided recorded calls made by Aiken to his
mother from the Bureau of Prisons. In one of the calls, Aiken
stated: "Mom . . . [t]hat's what I kept telling you . . . I did
not have a room."


                                   - 15 -
             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 a 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.



                         -Dissenting Opinion Follows-




                                     - 16 -
               THOMPSON,     Circuit   Judge,       dissenting.      Some     say   the

Fourth Amendment — a provision that protects precious freedoms —

is dying "a death by a thousand cuts."                     See United States v.

Griffin,       589   F.3d    148,    154   (4th     Cir.   2009)     (Gregory,      J.,

dissenting).         They might be right.           Just consider what happened

here.

               All   agree    that   given    how    intensely     personal    Fourth

Amendment rights are, see Rakas v. Illinois, 439 U.S. 128, 133

(1978), Aiken must prove that the contested search violated his

legitimate expectation of privacy, under a test with two components

— one subjective, the other objective, see United States v.

Rheault, 561 F.3d 55, 59 (1st Cir. 2009). The subjective component

requires that he show that he had an actual expectation of privacy

in the searched area.          See Rheault, 561 F.3d at 59.           The objective

component requires that he show that this expectation is one

society is ready to accept as reasonable.                     See id.    Aiken must

carry this burden by a preponderance of the evidence, see United

States v. Matlock, 415 U.S. 164, 177 n.14 (1974) — which is a more-

likely-than-not standard, see United States v. Correa-Osorio, 784

F.3d 11, 24 (1st Cir. 2015).                  Accepting the judge's factual

findings absent clear error but inspecting his legal conclusion de

novo, we must scan the entire record in the light most flattering

to his ruling, see United States v. Turner, 169 F.3d 84, 85 n.1

(1st    Cir.    1999),      "drawing   all"    —    repeat,    all   —   "reasonable


                                       - 17 -
inferences in the ruling's favor," see United States v. McGregor,

650 F.3d 813, 823-24 (1st Cir. 2011) (citing United States v.

Owens, 167 F.3d 739, 743 (1st Cir. 1999)).               And ultimately, we

must affirm if any sensible view of the record backs that ruling

up.   See United States v. Materas, 483 F.3d 27, 32 (1st Cir. 2007).

                Aiken introduced no evidence at the suppression hearing.

He just cross-examined the government's witnesses.              And when all

was said and done, the judge — after viewing the suppression-

hearing record through the proper legal lens — made several

critical findings:

      1.   Bonnett "rented" the room with Browne the day before the

           search went down.

      2.   So "the room was Bonnett's room" too.

      3.   And "Aiken stayed there with Bonnett's knowledge."

      4.   More, "Aiken was in the room" not just with Bonnett's

           "knowledge," but "with Bonnett's permission."

      5.   The search "occurred around 9:00 a.m."

      6.   Bonnett had "possession" of the room "and had a key to the

           room" when law enforcement "encountered him and Aiken at

           the motel."

      7.   "The morning hour," the "appearance of the room," and the

           "appearance of its . . . two occupants — Bonnett and Aiken

           —"    jibe   with   their   "having   slept   in   the   room   and,




                                       - 18 -
         therefore, having occupied the room for more than a brief

         period."

And make no mistake — the veteran judge did not pull these findings

out of thin air.     Among the supporting evidence in the record is:

   1.    Bonnett's calling the room (in an affidavit) "our room" —

         meaning his and Browne's room.

   2.    An agent's saying the room had two beds, one of which

         "look[ed] like the sheets and the comforters were pulled

         back" and the other of which looked "like it had just been

         made."

   3.    The agent's saying Aiken had on shorts and maybe a t-shirt,

         but no shoes, while Bonnett had on "mesh shorts and a t-

         shirt" — for what it's worth, a quick check of publicly

         available records shows the outside temperature in the

         Lewiston area hovered around 43 degrees Fahrenheit at the

         time of the search,9 a fact we can take judicial notice of.

         See Sharfarz v. Goguen (In re Goguen), 691 F.3d 62, 71 n.6

         (1st Cir. 2012).

   4.    And Aiken's telling his mother during a recorded jailhouse

         call that




     9 See Local Climatological Data Station Details, NOAA (last
visited      Nov.      14,     2017),      www.ncdc.noaa.gov/cdo-
web/datasets/LCD/stations/WBAN:94709/detail (select "2014" for
year; select "November" for month; select "7" for day; then click
"View Data").


                                - 19 -
          a.    he   had   "spent     the   night"   in   Bonnett's   room,    with

                Bonnett's blessing;

          b.    he "was asleep" when the agents showed up; and

          c.    he "went back in the bed" after he first heard the

                agents' knocking.

          By the way, the prosecutor presented this evidence after

          agreeing with Bonnett's lawyer that the transcripts — which

          confirm Bonnett had "registered" as a motel guest — were

          relevant         to     the       reasonable-expectation-of-privacy

          question.

               Anyhow, after making his findings, the judge ruled that

"Aiken had an actual, subjective expectation of privacy" in the

searched room "that was objectively reasonable."                 Which triggered

this appeal by the government.10

               Critically,      the   majority   rules    none   of   the   judge's

findings clearly erroneous.             Rightly so, since "[t]he clear-error

hurdle is, of course, quite high" — under that standard, we can't

flip the judge's "findings of fact or conclusions drawn therefrom

unless, on the whole of the record, [we] form a strong, unyielding

belief that a mistake has been made." Lenn v. Portland Sch. Comm.,

998 F.2d 1083, 1087 (1st Cir. 1993) (emphasis added) (quoting


     10 The government also appealed the judge's ruling that
Bonnett's privacy expectation met the subjective and objective
criteria discussed above. But the government later asked us to
dismiss that appeal, see Fed. R. App. P. 42(b), and we obliged.


                                        - 20 -
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.

1990)).11   And no judge on this panel sees anything approaching

that standard here.

            Yet curiously, despite letting the judge's findings

stand, the majority says Aiken was not an "overnight guest," but

merely a "drug trafficker who [was] present inside [the] motel

room and [fell] asleep for an unknown period of time."        Having

deemed his "guest status" inadequate to "resolve the question of

whether he had a reasonable expectation of privacy," the majority

then shifts focus to "(1) the nature of [Aiken's] visit" to the

motel, "(2) his length of stay, and (3) his relationship to"

Bonnett and Browne.    And after blasting him for coming "forward

with no evidence on a motion that he had the burden to carry," the

majority says an analysis of those three factors shows he has no

"objectively   reasonable   expectation   of   privacy."   Then   the

majority basically ends it all with these words:      "sleeping in a

motel room for longer than a brief period of time, without more,

is insufficient to warrant Fourth Amendment protection."

            But the majority makes an error right out of the gate,

an error that infects its entire analysis.     I say this because the




     11See also Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,
46 (1st Cir. 2013) (noting that clear error means the judge got
things "wrong with the force of a 5 week old, unrefrigerated, dead
fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625,
627 (7th Cir. 2001))).


                               - 21 -
judge's unreversed findings — coupled with the uncontested record

evidence — actually point to Aiken's being an overnight guest.

Think about it: Co-room-renter Bonnett let Aiken stay in the room,

a room that was just as much Bonnett's as it was Browne's.                   That

is a game-changing finding, since no one — not even the government

— disputes that co-room-renter Browne had the authority to have

guests stay over.      And not only was Aiken in the room on Bonnett's

say-so, but Aiken "slept" there, and "for more than a brief period"

—     yet   another   game-changing    finding,   especially        since     the

undisputed evidence (which the government itself introduced) shows

Aiken "spent the night there."

             The majority tries earnestly — and in seven ways — to

argue against the overnight-guest designation.          But none persuades

me.

             First, the majority criticizes Aiken for using "the

government's evidence to satisfy his burden" on the reasonable-

expectation-of-privacy        front,    instead   of    "testify[ing]          or

put[ting] on any evidence" himself.          But I know of no authority —

and the majority cites none — suggesting that Aiken couldn't lean

on the government's evidence in shouldering his burden.                   That's

hardly a surprise, since solid precedent points in precisely the

opposite     direction   —   the   Federal   Reporter   is   full    of     cases

declaring that we must "consider[] all the evidence" in deciding

whether "[r]eversal is appropriate."          See, e.g., United States v.


                                    - 22 -
Martinez, 762 F.3d 127, 130 (1st Cir. 2014) (emphasis added).12              If

more were needed — and I doubt that it is — even the prosecutor

conceded below that the judge could consider the government-

proffered jailhouse-call evidence in deciding whether Aiken had

Fourth Amendment rights in the room.             So argument-number one has

no oomph, as I see it.

             Second, the majority says (emphasis mine) that while the

judge rightly inferred from the evidence that Bonnett had invited

Aiken into the room, we cannot "make any other inferences to

support Aiken's reasonable expectation of privacy" because he

offered "no evidence" on an issue on which he bears the burden of

proof.     That statement strikes me as odd, and for a simple reason:

argument-number one implies that witness and affidavit testimony

offered    by     others   can't   help   Aiken,    yet    argument-number   two

concedes — in a way that seemingly contradicts argument-number one

—   that    the    judge    correctly     drew     the    Bonnett-invited-Aiken

inference from witness and affidavit testimony offered by others.

Anyhow, the subtext of the majority's argument is the suggestion


     12See generally United States v. Castellanos, 716 F.3d 828,
846 (4th Cir. 2013) (emphasizing that a "defendant need not
affirmatively present evidence of his legitimate expectation of
privacy; rather, he may simply 'point to specific evidence in the
record which the government [has] presented'" (quoting United
States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995) (alteration
in original))); see also 6 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 11.2(b) (5th ed. Oct. 2017)
(noting that "it may happen that the [defendant's] burden is
actually met . . . by evidence given by the [government]").


                                     - 23 -
that the law puts some kind of cap on the number of inferences

that judges can draw from the evidence.   No dice, I'm afraid:   the

majority doesn't identify — and I've not found — a single case

supporting that proposition, probably because precedent commands

us to "draw[] all reasonable inferences" in support of the judge's

ruling.   See McGregor, 650 F.3d at 823-24 (double emphasis added).

Which, by my reckoning, takes all the wind out the majority's

can't-make-additional-inferences argument.

           Third, the majority elsewhere contends that "the amount

of time [Aiken] spent in the room" is "unknown" and — echoing a

familiar theme — asserts that because he failed to "put forth

evidence" on that score, "he failed to meet his burden."   Not so,

I say.    As noted above, the government introduced evidence — in

the form of an audio disc and transcripts of Aiken's jailhouse

calls with his mother — that Aiken had "spent the night" in

Bonnett's room.   And once again, the majority cites no authority

— nor have I found any — indicating that Aiken could not rely on

this evidence in meeting his burden.   Enough said about argument-

number three.

           Fourth, the concatenation of circumstances — the time of

the search (9:00 a.m.-ish), the room's condition (e.g., one bed

unmade, the other just made), and the occupants' appearance (e.g.,

Aiken had just woken up and was barely dressed) — led the judge to

find that Bonnett and Aiken had "slept in the room."   The majority


                              - 24 -
tries to score points by playing up how the judge made "no finding

that [Aiken] was an 'overnight guest.'"         The argument comes to

naught, however.   Yes, the judge never used the "overnight guest"

buzz-phrase.   But the judge did find that Aiken had "slept in the

room" and thus had "occupied the room for more than a brief

period."   The majority thinks the "more than a brief period"

finding has no significance — maybe the majority thinks there's a

magic number of hours one must spend in a room to get tagged as an

overnight guest, though the majority doesn't say what that number

is (3 hours? 6 hours? 9 hours?).   No matter.    The undisputed record

evidence shows that Aiken stayed in the room overnight — as the

guest of Bonnett, who had rented the room the day before the search

with Browne, as the judge supportably found.13     So in other words,

the uncontested evidence and the unreversed findings put Aiken

squarely in the overnight-guest camp.     And that means argument-

number four isn't a difference-maker either, at least in my book.

           Fifth, focusing on the "reasonable" part of the "all

reasonable inferences" standard discussed in cases like McGregor

and Owens, the majority suggests that it's simply "unreasonable"

to infer that Aiken stayed in the room "overnight."        I couldn't




     13 The majority criticizes Aiken for not producing evidence
that he "had a relationship with Browne" or that he had stayed in
the room "with Browne's permission." But because — as I've just
explained — the room was just as much Bonnett's as it was Browne's,
the majority's Browne-centric argument carries no weight.


                              - 25 -
disagree more strongly: given that the only evidence in the record

is that Aiken "spent the night" in Bonnett's room, I think it's

perfectly reasonable to infer that he stayed there "overnight" —

put more bluntly, "spent the night" = "overnight."        And to the

extent the majority thinks inference-drawing is verboten in this

context, our caselaw holds otherwise — to quote from one of our

many cases:   "[w]here specific findings are lacking, we view the

record in the light most favorable to the [suppression] ruling,

drawing all reasonable inferences in support of the challenged

ruling."   See Owens, 167 F.3d at 743 (emphasis added).

           Sixth, in a variation of a just-discredited argument,

the majority implies that because Aiken "provided no evidence to

satisfy his burden," one can't draw the overnight-guest inference

that he wants.     The unstated but inescapable premise of the

majority's position is that one can't make reasonable inferences

from the government's evidence.    But like the earlier one, this

argument — also made without citation to any authority — is a no-

go:   the caselaw (as I keep repeating) says we must draw all

reasonable inferences in favor of the judge's ruling after the

reviewing the record as a whole, see McGregor, 650 F.3d at 823-

24, and obviously, the government's evidence is part of the whole

record.

           Seventh and finally, the majority claims that Aiken

can't be an overnight guest for constitutional purposes because


                              - 26 -
his case is too dissimilar to United States v. Bain — a hot-off-

the-presses decision where we held that the defendant who had

stayed overnight at his girlfriend's apartment could challenge the

constitutionality of a search there that turned up (among other

things) drugs and tools of the drug trade.     See 874 F.3d 1, 10,

13-14 (1st Cir. 2017).    Unlike Aiken, the Bain defendant provided

"evidence of his social relationship to the host and purpose of

his visit."   At least that's what the majority thinks.   I beg to

differ.   Again, and at the risk of excessive repetition, the

unchallenged evidence here shows Aiken certainly knew Bonnett well

enough to stay with him in the room overnight and to catch some Zs

in one of the beds — activities that society regards as private

and that put him in the overnight-guest category.    See Minnesota

v. Olson, 495 U.S. 91, 96-100 (1990) (stressing that an overnight

lodging provides as much privacy and security on a short-term basis

as one's home does on a long-term basis, thus giving the overnight

guest a reasonable expectation of privacy).       And the majority

points to no language in Bain that compels a contrary conclusion.

          Given Aiken's overnight-guest status, the rest of the

analysis is easy-peasy.    Our judicial superiors held decades ago

that a person'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."    Olson, 495 U.S. at 96-




                               - 27 -
97 (emphasis added).     And the Court provided reasons aplenty for

the rule:

      To hold that an overnight guest has a legitimate
      expectation of privacy in his host's home 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 relatives 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 legitimate
      expectation of privacy in his host's home.

Id. at 98.    An overnight guest, the Court went on to say,

      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.

Id.   Of course, it goes without saying (but I say it anyway) that

a motel room "can clearly be the object of Fourth Amendment

protection as much as a home . . . ."    See Hoffa v. United States,

385 U.S. 293, 301 (1966); see also Stoner v. California, 376 U.S.

483, 490 (1964).

             Relying on Olson, we held in Bain that the defendant's

status as an overnight guest at his girlfriend's apartment — in

and of itself — gave him "a reasonable expectation of privacy in


                                - 28 -
the [premises]." See Bain, 874 F.3d at 13. So he had "a sufficient

connection with [the apartment]" to seek suppression of drugs and

drug-trade tools found there.     Id. at 11.   And because Aiken fits

within the overnight-guest category, Olson and Bain require us to

affirm the judge's order below — of that I am certain.14

           Perhaps sensing the difficulties in its position, the

majority   attempts   to    distinguish   Bain,   arguing   that   Bain

"present[ed] 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," the majority continues, "is not

claiming here that the police trespassed upon his curtilage" —

"[r]ather, at issue here is his privacy interests inside the motel

room, and whether he provided sufficient evidence to make a

threshold showing that he had a reasonable expectation of privacy."




     14 The majority thinks I've ignored Minnesota v. Carter, 525
U.S. 83 (1998). My response: Carter held that two defendants did
not have a legitimate expectation of privacy in an apartment they
had occupied only for 2 ½ hours and only for the purpose of
packaging drugs. Id. at 86, 91. The Carter defendants did not
come within the overnight-guest category, obviously. See id. at
91.   But Aiken does, for the reasons recorded above.      So the
majority's Carter-driven argument can't succeed.

     Separately but relatedly, the majority implies that I think
"the Supreme Court meant to encompass all guests under the Olson
analysis." But I think nothing of the sort. As I've been at pains
to stress, Olson holds that an overnight guest has a legitimate
expectation of privacy in his host's abode — and constitutionally
speaking, Aiken has achieved an overnight-guest status.


                                 - 29 -
          The problem for the majority is this.    Before addressing

and rejecting the government's claim "that a search defined in

part by an invasion of property rights is a search only as to

persons who could maintain a common law trespass claim," we

emphasized how the defendant was an "overnight guest" of his

girlfriend.   Bain, 874 F.3d at 13.    And we emphasized as well how

"[u]nder Supreme Court precedent," his overnight-guest status "'is

alone enough to show that he had an expectation of privacy in the

[apartment] that society is prepared to recognize as reasonable.'"

Id. (quoting Olson, 495 U.S. at 96-97).       Importantly here, the

just-quoted Bain statements are holdings — because they were

necessary to the result there — and so we're bound to follow them.

See generally Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67

(1996) (explaining that "when an opinion issues for the [c]ourt,

it is not only the result but also those portions of the opinion

necessary to that result by which we are bound").    And it is these

holdings that devastate the majority's analysis.

          Bottom line:    Reading the record in the light most

favorable to the judge's ruling, and keeping in mind that his

decision must stand if any reasonable view of the evidence supports

it, I believe the unreversed findings and the uncontested evidence

establish — under controlling precedent — that Aiken was an

"overnight guest" of Bonnett in a constitutional sense.        Which

again means Aiken had a legitimate expectation of privacy in the


                              - 30 -
motel room and so could challenge the search.   And because the

majority (though conscientious) sees the matter differently, I

respectfully (but unequivocally) dissent.




                             - 31 -
