        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2       United States v. Berryhill                           No. 02-5783
    ELECTRONIC CITATION: 2003 FED App. 0440P (6th Cir.)
                File Name: 03a0440p.06                     W. Laymon, Jr., ASSISTANT UNITED STATES
                                                           ATTORNEY, Chattanooga, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                                      _________________
               FOR THE SIXTH CIRCUIT                                                    OPINION
                 _________________                                                  _________________

 UNITED STATES OF AMERICA , X                                 ALAN E. NORRIS, Circuit Judge. Defendant Joshua
                                                           Berryhill appeals the denial of his motion to suppress
             Plaintiff-Appellee, -                         evidence seized from an apartment at which Berryhill was
                                   -
                                   -   No. 02-5783         present. Berryhill had been invited to the apartment by a
            v.                     -                       friend who was not the tenant. On appeal, he contends that
                                    >                      the district court erred in finding that he had no legitimate
                                   ,                       expectation of privacy in the apartment. We affirm.1
 JOSHUA BERRYHILL,                 -
          Defendant-Appellant. -                              The Fourth Amendment protects an individual from
                                  N                        unreasonable searches and seizures only where the individual
        Appeal from the United States District Court       can show that: 1) “he manifested a subjective expectation of
   for the Eastern District of Tennessee at Chattanooga.   privacy in the object of the challenged search[,]” and
     No. 01-00118—Curtis L. Collier, District Judge.       2) “society is prepared to recognize that expectation as
                                                           legitimate.” United States v. Sangineto-Miranda, 859 F.2d
              Argued: September 18, 2003                   1501, 1510 (6th Cir. 1988) (citing California v. Ciraolo, 476
                                                           U.S. 207, 211 (1986)). Fruits of unreasonable searches of
         Decided and Filed: December 11, 2003              locations in which an individual can show an actual and
                                                           reasonable expectation of privacy will be suppressed. Rakas
   Before: BOGGS, Chief Judge; NORRIS and CLAY,            v. Illinois, 439 U.S. 128, 143 (1978) (citing Katz v. United
                  Circuit Judges.                          States, 389 U.S. 347, 353 (1967)).

                   _________________                          The district court made a factual finding that Berryhill had
                                                           not been invited to the apartment by its tenant. United States
                       COUNSEL                             v. Berryhill, No. 1:01-CR-118, slip. op. at 4 (E.D. Tenn. Feb.

ARGUED: Lex A. Coleman, JOHNSON, MULRONNY &
COLEMAN, Chattanooga, Tennessee, for Appellant. Paul           1
                                                                 Because we affirm the district court’s ruling that Berryhill lacked a
W. Laymon, Jr., ASSISTANT UNITED STATES                    reaso nable expectation of privacy, we do not reach the question of
ATTORNEY, Chattanooga, Tennessee, for Appellee.            whether the search was rea sonable. In ad dition, because we conclude that
ON BRIEF: Lex A. Coleman, JOHNSON, MULRONNY &              the district co urt did not rely upon hearsa y testimony or up on B erryhill’s
COLEMAN, Chattanooga, Tennessee, for Appellant. Paul       failure to testify at the sup pression hearing, we do not ad dress Berryhill’s
                                                           challenges to the denial of suppression on those grounds.

                             1
No. 02-5783                   United States v. Berryhill      3    4      United States v. Berryhill                  No. 02-5783

20, 2002). Berryhill challenges this factual finding on appeal,    or legitimate an expectation of privacy based solely on an
but provides us with insufficient evidence to conclude that it     invitation to enter a residence by a guest without the direct or
was clearly erroneous. United States v. Hurst, 228 F.3d 751,       indirect knowledge of the lawful tenant or owner.” Berryhill,
756 (6th Cir. 2000).                                               slip op. at 4-5. He argues that the modern social custom of
                                                                   “crashing” at the residence of a friend of a friend
  The district court found that Berryhill failed to meet his       demonstrates societal acceptance of his expectation of
burden of showing that he had a reasonable expectation of          privacy. We review the district court’s legal conclusions in
privacy in the searched apartment, basing its conclusion on        denying a suppression motion de novo. Hurst, 228 F.3d at
two grounds: first, that Berryhill did not intend to stay at the   756.
apartment overnight, and second, that he unreasonably relied
upon a guest’s invitation to enter the apartment given without        Berryhill cites no direct authority for the proposition that
the direct or indirect knowledge of the lawful tenant or owner.    an individual staying at a residence at the invitation of a guest
Berryhill, slip. op. at 4-5. We will address each basis in turn.   without the permission or knowledge of the lawful tenant or
                                                                   owner holds a reasonable expectation of privacy in the
  In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme           residence. He cites a passage from Olson in an attempt to
Court determined that an overnight guest has a reasonable          demonstrate that the Supreme Court recognized his
expectation of privacy in his host’s home. Olson, 495 U.S. at      expectation of privacy to be reasonable:
99. By contrast, a casual, transient visitor does not have a
reasonable expectation of privacy in his host’s home. United           The houseguest is there with the permission of his host,
States v. McNeal, 955 F.2d 1067, 1070 (6th Cir. 1992). The             who is willing to share his house and his privacy with his
district court found that it had no factual basis to conclude          guest. It is unlikely that the guest will be confined to a
that Berryhill intended to spend the night at the searched             restricted area of the house; and when the host is away or
apartment. Berryhill, slip op. at 5. This court reviews a              asleep, the guest will have a measure of control over the
district court’s factual basis for a denial of a suppression           premises. The host may admit or exclude from the house
motion for clear error. Hurst, 228 F.3d at 756.                        as he prefers, but it is unlikely that he will admit
                                                                       someone who wants to see or meet with the guest over
  Berryhill contends that the evidence supported his                   the objection of the guest. On the other hand, few
contention that he intended to stay at the apartment overnight.        houseguests will invite others to visit them while they are
He points to testimony from the guest who invited him that             guests without consulting their hosts; but the latter, who
they intended to stay overnight. However, Berryhill lacked             have the authority to exclude despite the wishes of the
any of the items one would expect an overnight guest to have           guest, will often be accommodating.
with him. He carried no clothes or toothbrush; indeed, the
only bag in his possession contained materials for                 Olson, 495 U.S. at 99. Berryhill interprets the last sentence
manufacturing methamphetamines. The district court did not         of the foregoing passage to mean that those visitors who are
commit clear error in determining that Berryhill was not an        invited to a residence by a houseguest have a reasonable
overnight guest.                                                   expectation of privacy in the residence because the hosts “will
                                                                   often be accommodating.” Id. However, the passage taken
   Berryhill also contends that the district court erred in        as a whole indicates that the reason a houseguest has a
finding that society was not “prepared to accept as reasonable     reasonable expectation of privacy is because he knows that
No. 02-5783                   United States v. Berryhill     5

the host would respect his privacy, having obtained the host’s
permission to be at the residence. Olson cannot be taken for
the proposition that guests’ visitors can be assured that their
privacy will be respected by the lawful owners or tenants of
the residence. Berryhill does not dispute that he never
received permission to stay at the apartment directly from its
tenant; therefore, he could not be assured that his host would
respect his privacy. Berryhill’s expectation of privacy was
not reasonable.
 For the foregoing reasons, the order of the district court is
AFFIRMED.
