                                                    NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-1444
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                       CHE ROSE,
                                                 Appellant
                                     _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 3:10-cr-025)
                          District Judge: Hon. Kim R. Gibson
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 2, 2015

             Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

                               (Opinion Filed: June 3, 2015)
                                    _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Che Rose appeals an order of the United States District Court for the Western

District of Pennsylvania denying his motion to suppress the fruits of a search of Brandon

Grayson’s apartment. He argues that, as Grayson’s social guest, he had a legitimate

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
expectation of privacy in Grayson’s apartment, and, as a result, he has standing to

challenge the search. His argument is unpersuasive and we will affirm.

I.     Background

       A.     Factual Background

       On September 10, 2009, Detective Larry Wagner was investigating a recent

burglary in which a .40 caliber handgun had been stolen. J.M., a juvenile residing at the

Cambria County Juvenile Detention Home, told Detective Wagner that another juvenile,

A.P., claimed to have sold the firearm to an older black man for $300. J.M. was not

present when A.P. sold the gun; in fact, J.M. never saw A.P. possess the firearm. J.M.

said that the sale took place at an apartment on the top floor of a building located on

Cypress Avenue in Johnstown, Pennsylvania, across from the old Cypress Avenue

School. More specifically, the address was 340 Cypress Avenue, Apartment 6

(“Apartment 6”). J.M. knew the location because he had accompanied A.P. to Apartment

6 after the sale when, for unexplained reasons, A.P. attempted to retrieve the firearm.

       Detective Wagner spoke with other juveniles who corroborated a part of J.M.’s

information, though they could not confirm the location of the sale. Detective Wagner

spoke to A.P., who admitted handling the firearm but did not admit to possessing it for

any length of time. A.P. also denied selling the gun to anyone.

       Within hours of interviewing J.M., Detective Wagner decided to go to Apartment

6. Because he believed that the matter presented issues of officer safety, he took three

other officers along: Detective Eckenrod, Officer Britton, and Officer Kabler. Also,

because he was concerned about the passage of time and the possibility of the firearm

                                             2
being moved, Detective Wagner did not obtain a search warrant. Instead, he hoped to

meet with the occupant, explain the information that he had gathered, and receive consent

to search the apartment.

       When they arrived at Apartment 6, Officer Kabler walked to the rear of the

apartment building and Detective Wagner knocked on the front door of Apartment 6.

Grayson opened the door. At the time, Grayson, who was renting the apartment, had

resided there for a little over a year, but he spent most nights at his fiancée’s apartment.

After spending the night of September 9, 2009, at his fiancée’s apartment, Grayson

returned to Apartment 6 sometime between 9 a.m. and 10 a.m. on the morning of

September 10 to prepare for a cookout he was hosting that day. About one hour later,

Grayson’s brother and his brother’s girlfriend arrived along with her child. Shortly

thereafter, others arrived, including Rose.

       Rose was a casual acquaintance of Grayson’s, but he was a good friend of

Grayson’s brother. Although Grayson had known Rose for approximately six years, the

two seldom spent time together. Rose had stayed the night at Grayson’s residence at least

once when Grayson lived at a different address, but Rose had never been an overnight

guest at Apartment 6.

       After Grayson opened his apartment door, Detective Wagner identified himself,

explained that he was investigating a firearm burglary, and asked for permission to search

the apartment for the firearm. Grayson did not consent and told the officers that they

would need to secure a search warrant if they wished to search his apartment. Detective

Wagner responded that he would seek a search warrant, but in the interest of officer

                                              3
safety and to prevent the destruction or removal of evidence, the officers needed to secure

the apartment. After receiving that explanation, Grayson stepped out of the way and the

officers entered Apartment 6.

       At about the same time the officers were entering Grayson’s apartment, Officer

Kabler, who was behind the apartment building, heard a window being opened. He

looked up and saw Rose leaning out of a window with a revolver in his hand. Officer

Kabler radioed to the other officers that there was a person with a gun hanging from one

of the windows of the apartment. He then ordered Rose to drop the gun, but Rose did not

comply and instead unsuccessfully attempted to throw the gun onto the roof. It landed on

the ground instead. Detectives Eckenrod and Wagner then entered the room where Rose

was hanging out of the window. Without any prompting from the officers, Rose

proclaimed that the gun was his, nobody else’s, and nobody else was involved. The

officers arrested Rose and seized the .38 caliber revolver he had tried to hide, along with

money and crack cocaine concealed on his person.

       After obtaining a warrant, the police searched Apartment 6 but did not locate the

stolen .40 caliber firearm for which they had come.

       B.     Procedural History

       A grand jury returned an indictment charging Rose with distribution of less than 5

grams of crack cocaine on June 19, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C) (count 1); unlawful possession of a firearm by a felon on September 10,

2009, in violation of 18 U.S.C. § 922(g)(1) (count 2); possession with intent to distribute

less than 5 grams of crack cocaine on September 10, 2009, in violation of 21 U.S.C.

                                             4
§§ 841(a)(1) and 841(b)(1)(C) (count 3); and distribution of less than 5 grams of crack

cocaine on April 13, 2010, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (count

4).

       Rose moved to suppress the evidence that was seized on September 10, 2009, and

that provided the basis for counts 2 and 3. In his motion, he argued that his statements

and the physical evidence were products of a warrantless search of Grayson’s apartment,

which was made without probable cause or exigent circumstances. Rose claimed that he

was an overnight guest at Grayson’s apartment and therefore had standing to challenge

the legality of the search. The District Court held a hearing to consider his motion, but

Rose presented no evidence to support his assertion that he had been an overnight guest.

The District Court denied the motion, finding that, as a short-term social guest, Rose did

not have standing to challenge the search of Grayson’s apartment.

       Rose pled guilty to counts 2 and 3, but he reserved the right to appeal the denial of

his suppression motion, which he has now done.

II.    Discussion1

       To have standing to challenge the search of Grayson’s apartment, Rose must

establish that he had a reasonable expectation of privacy in the apartment. Minnesota v.

Olson, 495 U.S. 91, 95-97 (1990). That requires him to show both that he had a

subjective expectation of privacy in the apartment and that his expectation was

       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. On appeal from the denial of a motion to
suppress, we review the District Court’s factual findings for clear error and exercise
plenary review over its legal determinations. United States v. Stanley, 753 F.3d 114, 118
(3d Cir. 2014).
                                             5
objectively reasonable. Rakas v. Illinois, 439 U.S. 128, 143 & n.12 (1978); United States

v. Donahue, 764 F.3d 293, 298-99 (3d Cir. 2014). As the Supreme Court has explained,

a person who lacks the requisite expectation of privacy and is “aggrieved by an illegal

search and seizure only through the introduction of damaging evidence secured by a

search of a third person’s premises or property has not had any of his Fourth Amendment

rights infringed.” Rakas, 439 U.S. at 134.

       On appeal, Rose abandons the argument he made in the District Court that he was

an overnight guest and argues instead that, because he was Grayson’s social guest and

had a “pre-existing relationship” with Grayson, he should be recognized as having a

legitimate expectation of privacy in Grayson’s apartment and, consequently, having

standing to challenge the search of the apartment. (Opening Br. at 14; see also Opening

Br. at 27 (“As a social guest present with his host’s permission to enjoy a cook out and to

hang out, Che Rose had a reasonable expectation of privacy in the home of his host and

long-time acquaintance, Brandon Grayson.”).) Rose argues that Minnesota v. Olson

supports his position. In Olson, the police made a warrantless, nonconsensual entry into

a house where Robert Olson was an overnight guest and arrested him. The Supreme

Court held that the arrest violated Olson’s Fourth Amendment rights. In reaching its

conclusion, the Olson Court reasoned that “[s]taying overnight in another’s home is a

longstanding social custom that serves functions recognized as valuable by society” and

“society recognizes that a houseguest has a legitimate expectation of privacy in his host’s

home.” 495 U.S. at 98. The Supreme Court’s analysis was also informed by its

observation that an overnight guest “seeks shelter in another’s home precisely because it

                                             6
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.” Id. at 99.

       Rose contends that the holding in Olson is not limited to overnight guests and that

the principles articulated in the case are broad enough to cover a social guest attending an

afternoon cookout at the home of a long-time acquaintance and friend. In support of that

contention, Rose reasons that, “despite [Olson’s] emphasis upon the special privacy

concerns of guests when they are asleep and cannot monitor their own safety or the

security of their belongings, that consideration seems largely irrelevant in the Olson case

itself, where the objected-to police conduct occurred at three o’clock in the afternoon.”

(Opening Br. at 22 (internal quotation marks and brackets omitted).) Rose also says that

“visiting the house of another without an overnight stay is [also] a longstanding social

custom that serves functions recognized as valuable by society.” (Id. at 22-23 (emphasis

and internal quotation marks omitted).)

       Whether or not Fourth Amendment protections may be broad enough to cover

individuals other than residents and their overnight guests, the expansive rule for which

Rose advocates goes too far.2 In Jones v. United States, 362 U.S. 257 (1960) overruled

on other grounds by United States v. Salvucci, 448 U.S. 83 (1980), the Supreme Court

held that a defendant who was arrested at his friend’s apartment during the execution of a


       2
         Rose asserts that, looking at the concurrences and dissent filed in Minnesota v.
Carter, 525 U.S. 83 (1998), we can surmise that five Justices accept the proposition that
almost all social guests have a legitimate expectation of privacy, and therefore protection
against unreasonable searches, when in their host’s home. (Opening Br. at 26.) Rose
makes a clever argument, but we need not engage in the reading of tea leaves given the
Supreme Court’s clear guidance in Rakas v. Illinois, discussed herein.
                                             7
search warrant could challenge the search of the apartment because he was “legitimately

on [the] premises.” Id. at 267. In Rakas v. Illinois, however, the Supreme Court rejected

Jones’s “legitimately on [the] premises” standard as overly broad. 439 U.S. at 142-48.

While Rakas reaffirmed the factual holding in Jones, stating that “Jones on its facts

merely stands for the unremarkable proposition that a person can have a legally sufficient

interest in a place other than his own home so that the Fourth Amendment protects him

from unreasonable governmental intrusion into that place,” Rakas recognized that, as an

overnight guest, Jones was much more than just “legitimately on [the] premises.” 439

U.S. at 141-42. Olson later adhered to the reasoning in Rakas, holding that the defendant

had standing to challenge a search because he was an overnight guest. 495 U.S. at 98-

100. “Thus, an overnight guest in a home may claim the protection of the Fourth

Amendment, but one who is merely present with the consent of the householder may

not.” Minnesota v. Carter, 525 U.S. 83, 90 (1998).

       The rule for which Rose argues is only slightly narrower than the “legitimately on

[the] premises” standard that was rejected in Rakas. Perhaps in the future, it may be

necessary for us to decide whether Fourth Amendment rights attach somewhere on the

spectrum between “overnight guest” and “merely present with the consent of the

householder.” We need not do so now, however, because, as ample precedent

demonstrates, this case does not present a close call. Rose had no possessory interest in

any part of the apartment, United States v. Maddox, 944 F.2d 1223, 1234 (6th Cir. 1991);

he did not store any clothing or property at the apartment, cf. United States v. Armenta,

69 F.3d 304, 308-09 (9th Cir. 1995); he had no key to the apartment, cf. United States v.

                                             8
Davis, 932 F.2d 752, 757 (9th Cir. 1991); United States v. Nabors, 761 F.2d 465, 469

(8th Cir. 1985); he did not have permission to be at the apartment without Grayson’s

presence or consent, cf. Davis, 932 F.2d at 757; Nabors, 761 F.2d at 469; he did not

receive mail at the apartment, cf. Nabors, 761 F.2d at 469; five other guests had common

access to the areas in the apartment occupied by him, cf. United States v. Ruiz, 664 F.3d

833, 839 (10th Cir. 2012); United States v. Correa, 653 F.3d 187, 190-91 (3d Cir. 2011);

United States v. Maestas, 639 F.3d 1032, 1039-40 (10th Cir. 2011); he had no ability to

and made no effort to exclude others from any part of the apartment, cf. Gray, 491 F.3d at

152; he was a casual acquaintance of Grayson’s, cf. Maddox, 944 F.2d at 1234; and,

because no evidence was elicited at the suppression hearing suggesting that Rose had

ever even visited Apartment 6 before the search, he was, it seems, an infrequent visitor to

the apartment, cf. United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir. 2000);

Maddox, 944 F.2d at 1234. On this record, then, the District Court properly found that

Rose lacked standing to challenge the search of Grayson’s apartment.3

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s denial of Rose’s

motion to suppress.




       3
         Because we agree with the District Court that Rose lacks standing to challenge
the search of Grayson’s apartment, we need not address his remaining arguments
concerning the search.
                                             9
