                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 05-4397
JOSHUA BRENT GRAY,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 05-4398
TERRENCE A. ASKEW,
              Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Southern District of West Virginia, at Huntington.
              Joseph Robert Goodwin, District Judge.
                            (CR-03-182)

                      Argued: October 24, 2006

                       Decided: July 2, 2007

     Before WILLIAMS, Chief Judge, and WILKINSON and
                 MICHAEL, Circuit Judges.



Affirmed by published opinion. Judge Wilkinson wrote the majority
opinion, in which Chief Judge Williams joined. Judge Michael wrote
a dissenting opinion.
2                      UNITED STATES v. GRAY
                             COUNSEL

ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia; Mark Lawrence
French, CRISWELL & FRENCH, P.L.L.C., Charleston, West Vir-
ginia, for Appellants. Richard Gregory McVey, OFFICE OF THE
UNITED STATES ATTORNEY, Huntington, West Virginia, for
Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, George H. Lancaster, Jr., Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant Joshua Brent Gray. Charles
T. Miller, Acting United States Attorney, Huntington, West Virginia,
for Appellee.


                             OPINION

WILKINSON, Circuit Judge:

   This case arises out of the arrest of defendants Terrence Askew and
Joshua Gray at the Huntington, West Virginia apartment leased by
Gray. Defendants were charged with conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (2000) and 21 U.S.C.
§ 846 (2000), and aiding and abetting possession with intent to dis-
tribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000) and
18 U.S.C. § 2 (2000).

   Defendants contend that, because police conducted an unlawful
search of Gray’s apartment, the district court should have granted
their motions to suppress evidence obtained from that search. More
specifically, Askew argues that he has standing to contest the physical
evidence obtained from Gray’s residence. We hold, however, that
because the Askew-Gray relationship was at core a business one,
Askew had no legitimate expectation of privacy in Gray’s apartment
and cannot claim the protections of the Fourth Amendment. For his
part, Gray argues that the testimony of Terrence Askew, David Cole,
and Dora Wallace is the product of an illegal search. Because the tes-
timony of the three witnesses was given voluntarily, however, its
causal connection to the violation of Gray’s Fourth Amendment rights
                       UNITED STATES v. GRAY                         3
is too attenuated to be considered the fruit of an unlawful search. For
these reasons, we affirm the judgment of the district court.

                                  I.

  On July 3, 2003, three members of the Huntington Federal Drug
Task Force went to Joshua Gray’s apartment, located at 4511 Rear
Altizer Avenue, to conduct a "knock and talk." The officers’ visit was
prompted by drug trafficking complaints filed by at least one neigh-
bor. The officers knocked on, and Gray opened, the side kitchen door.
A few moments later, the officers entered Gray’s home.

   Upon entering the apartment, the officers saw a tan substance,
which they believed to be cocaine base, or crack, on the kitchen table.
Detective Hunter looked into the living room and observed two men.
One man, later identified as Askew, was standing beside a table. The
table contained a set of digital scales, a white substance that looked
like cocaine, and a second substance that looked like crack cocaine.

   Detective Hunter asked for Askew’s name. Askew identified him-
self as "Rico Green," and started to reach into his pocket. Worried
that Askew was reaching for a weapon, Detective Hunter told Askew
to place his hands over his head and initiated a pat down search.
Askew had $8,000 in cash — rolled up in a plastic baggy — in his
front pants pocket. An additional plastic baggie of tan chunks, later
identified as cocaine base, was hidden in his shoe. During the search,
Askew told Officer Hunter that he had swallowed an eight-ball (about
3.5 ounces) of cocaine base, and the officers called the paramedics.

   The officers asked Gray for permission to search the rest of the
home. Gray refused. Sergeant Copley then applied for and obtained
a search warrant. The warrant was executed that day and the officers
recovered an additional .36 grams of cocaine base, drug parapherna-
lia, a .45 caliber Glock handgun, a magazine, and fifteen rounds of
ammunition.

   While the officers were waiting outside Gray’s home for Sergeant
Copley to return with the search warrant, David Cole and Dora Wal-
lace came to the residence to purchase drugs. Cole gave a statement
4                        UNITED STATES v. GRAY
to the officers on July 3, 2003, and also testified before the grand jury
on August 12, 2003, in which he described his previous drug pur-
chases at the Gray residence. Cole told officers that he had been to
the Altizer Avenue apartment on various occasions and had seen
Gray, Askew, and a third man packaging amounts of cocaine base.
Wallace declined to speak with officers at the scene. On February 9,
2004, however, she gave a statement to police concerning her knowl-
edge of defendants’ drug activities.

   On August 12, 2003, a federal grand jury returned a two-count
indictment against defendants. Count One charged that defendants
knowingly conspired to distribute cocaine base, or crack, in violation
of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Count Two charged
defendants with knowingly and intentionally possessing with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2.

   Defendants filed separate motions to suppress the evidence
obtained from Gray’s residence. The district court held a suppression
hearing, and found that Gray had not voluntarily consented to the ini-
tial warrantless search of his residence. Accordingly, the court
granted Gray’s motion to suppress the physical evidence obtained
from the illegal entry.1 The court, however, denied Askew’s suppres-
    1
   At the January 2004 hearing on the motions to suppress, the govern-
ment argued that Gray had in fact consented to the initial search. Detec-
tive Hunter testified that the officers identified themselves to Gray, told
him that they were there to investigate drug trafficking complaints, and
asked if they could come in. Gray "stepped to the side . . . walked in
front of [the officers] . . . and [they] walked in right behind him." Detec-
tive Hunter did not remember seeing any officer touch Gray prior to
entering the home.
   The defendants remembered events differently. They testified that,
when the officers asked to speak with him, Gray stepped out of his home,
pulling the door behind him. Gray stated that one of the officers, Corpo-
ral Jividen, placed his hand on Gray’s chest, and said something like,
"Let’s speak to you inside." Gray took a step back and the officers fol-
lowed him into his home. According to Gray, he asked the officers if
they had a warrant and Officer Jividen replied, "You’re going to try and
make this tough on us. If you do, I’ll make it tough on you." The officers
saw what looked like crack cocaine on the kitchen table, handcuffed
Gray, and stated that the crack cocaine was their search warrant.
                        UNITED STATES v. GRAY                          5
sion motion for lack of standing, finding that Askew did not have a
legitimate expectation of privacy in Gray’s residence. The court also
denied Gray’s motion to exclude the testimony of Terrence Askew,
David Cole, and Dora Wallace, explaining that the connection
between the testimony of the three witnesses and the illegal search
was too attenuated to be fruit of the illegal search.

   The defendants then entered into conditional plea agreements with
the government. On February 12, 2004, Askew pled guilty to aiding
and abetting possession with intent to distribute cocaine base and
agreed to provide testimony in exchange for dismissal of the conspir-
acy to distribute cocaine base charge. On April 9, 2004, Gray pled
guilty to conspiracy to distribute cocaine base. In return, the govern-
ment moved to dismiss the aiding and abetting possession with intent
to distribute cocaine base charge. Both defendants reserved the right
to seek review of the district court’s suppression rulings. Following
a joint sentencing hearing, the district court sentenced both defendants
to 97-month prison terms. Defendants now appeal.2

                                   II.

   Askew contends that the district court erred in denying his motion
to suppress evidence on the ground that he lacked Fourth Amendment
standing to challenge the search of Gray’s residence. We review fac-
tual findings underlying a motion to suppress for clear error and legal
determinations de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996). The burden of showing a reasonable expectation of privacy
in the area searched rests with the defendant. Rawlings v. Kentucky,
448 U.S. 98, 104 (1980).

  2
    At oral argument, Gray’s counsel conceded on behalf of both defen-
dants that defendants’ Ex Post Facto Clause sentencing argument, based
on United States v. Booker, 543 U.S. 220 (2005), had been rejected by
this court in United States v. Davenport. See Davenport, 445 F.3d 366,
370 (4th Cir. 2006) (holding that, because defendant was on notice of the
maximum statutory penalty when he committed the crime, retroactive
application of Booker did not violate the Ex Post Facto Clause).
6                       UNITED STATES v. GRAY
                                   A.

   The Fourth Amendment’s guarantee of the people’s right "to be
secure in their persons, houses, papers, and effects," protects individu-
als living in a large number of legal arrangements. U.S. Const. amend.
IV. Until a valid search warrant has issued, the Amendment safe-
guards the privacy interests of owners, Agnello v. United States, 269
U.S. 20, 33 (1925), boarders, McDonald v. United States, 335 U.S.
451, 454-56 (1948), and tenants, Chapman v. United States, 365 U.S.
610 (1961), of a home, apartment, or other dwelling place. Co-
tenants, co-owners, and co-occupants can also avail themselves of the
Fourth Amendment’s protections. See Georgia v. Randolph, 126
S. Ct. 1515, 1526 (2006). And, travelers are entitled to be free from
unreasonable government scrutiny in their hotel and motel rooms.
See, e.g., Johnson v. United States, 333 U.S. 10 (1948).

   Moreover, while "[t]he text of the Amendment suggests that its
protections extend only to people in ‘their’ houses" a person "may
have a legitimate expectation of privacy in the house of someone
else." Minnesota v. Carter, 525 U.S. 83, 89 (1998). The Supreme
Court has long held that the relatives of home owners who regularly
reside at the residence are protected by the Fourth Amendment.
Bumper v. North Carolina, 391 U.S. 543, 546-48 (1968). And, more
recently, the Supreme Court extended the Fourth Amendment’s pri-
vacy protections to overnight guests. Minnesota v. Olson, 495 U.S.
91, 98 (1990).

   The Fourth Amendment’s protection of the home does not turn on
whether illegal activity takes place therein. A search cannot "be justi-
fied by what it turns up." Bumper, 391 U.S. at 548 n.10. To the con-
trary, the people’s right to be free from unreasonable government
intrusion "has never been tied to measurement of the quality or quan-
tity of information obtained." Kyllo v. United States, 533 U.S. 27, 37
(2001). Indeed, notions of privacy would mean little if they crumpled
on the finding of inculpatory evidence.

   Although the Fourth Amendment’s protections against unreason-
able government scrutiny are broad, they are not unlimited. It is axi-
omatic that "suppression of the product of a Fourth Amendment
violation can be successfully urged only by those whose rights were
                        UNITED STATES v. GRAY                         7
violated by the search itself, not by those who are aggrieved solely by
the introduction of damaging evidence." Alderman v. United States,
394 U.S. 165, 171-72 (1969) (emphasis added). The right to be free
from an unreasonable search is personal in nature and cannot be
vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
Thus, the "capacity to claim the protection of the Fourth Amendment
depends . . . upon whether the person who claims the protection . . .
has a legitimate expectation of privacy in the invaded place." Carter,
525 U.S. at 88 (quoting Rakas, 439 U.S. at 143). A search can there-
fore be unconstitutional with respect to one person, yet the evidence
obtained therefrom admissible against a second person.

   Of course, every perpetrator of an unlawful act hopes for privacy
in the sense of not getting discovered or caught. But it is not enough
that an individual have a subjective expectation of privacy. Rather,
the expectation must be one "which the law recognizes as ‘legiti-
mate.’" Rakas, 439 U.S. at 144 n.12. To be legitimate, an expectation
of privacy must be objectively reasonable: it must flow from "a
source outside of the Fourth Amendment, either by reference to con-
cepts of real or personal property law or to understandings that are
recognized and permitted by society." Carter, 525 U.S. at 88 (quota-
tion omitted); see also Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir.
1996).

                                  B.

   The Fourth Amendment’s protections do not attach to every visitor.
For not every visitor "merely present with the consent of the house-
holder" has a legitimate expectation of privacy. Carter, 525 U.S. at
90. It is rather a foundational principle that "not all persons in the
company of the property owner have the owner’s right to assert the
spatial protection." Id. at 99 (Kennedy, J., concurring). Indeed, the
Supreme Court has repeatedly held that the Fourth Amendment is not
so broad as to encompass "anyone legitimately on the premises where
a search occurs." Id. at 90; see also Rakas, 439 U.S. at 147-48. Thus,
a temporary visitor to a residence — perhaps the mailman or pizza
deliverer — cannot generally claim the Fourth Amendment’s protec-
tions. See, e.g., Carter, 525 U.S. at 90; Terry v. Martin, 120 F.3d 661,
664 (7th Cir. 1997).
8                       UNITED STATES v. GRAY
   In Minnesota v. Carter, the Supreme Court held that visitors who
were "essentially present for a business transaction" had no legitimate
expectation of privacy in the apartment of a third party. 525 U.S. at
90; see also United States v. Rhiger, 315 F.3d 1283, 1286 (10th Cir.
2003) (interpreting Carter to create "a clear distinction between the
status of individuals present at a residence for social purposes and
those present for business or commercial matters"); United States v.
Gamez-Orduño, 235 F.3d 453, 458 (9th Cir. 2000) (interpreting Car-
ter to hold that "[a]n individual whose presence on another’s premises
is purely commercial in nature . . . has no legitimate expectation of
privacy in that location").

   The distinction between social guests and business visitors arises
from several considerations. To begin with, the text of the Fourth
Amendment speaks to the people’s interest in "their" homes. It traces
its origins to the ancient maxim: "A man’s home is his castle." And,
while early English cases protect a defendant in his own dwelling,
they do not extend to protect "any person who flies to his house."
Semayne’s Case, (1605) 77 Eng. Rep. 194, 198 (K.B.); see also John-
son v. Leigh, (1815) 128 Eng. Rep. 1029, 1030 (C.P.). Rather, at com-
mon law "the house of any one [wa]s not a castle or privilege but for
himself." Semayne’s Case, 77 Eng. Rep. at 198.

   To say that every business visit, however fleeting, gives the visitor
a legitimate expectation of privacy in someone else’s home strays far
from the text and its commonlaw heritage. For "[a]t the very core of
the Fourth Amendment stands the right of a man to retreat into his
own home and there be free from unreasonable governmental intru-
sion." Kyllo, 533 U.S. at 31 (internal quotations omitted). And while
expectations of privacy are at their apex in one’s home, they diminish
considerably in nonresidential property. An industrial complex does
not, of course, "share the Fourth Amendment sanctity of the home."
Id. at 37. Rather, the "expectation of privacy in commercial premises
. . . is different from, and indeed less than, a similar expectation in
an individual’s home." Carter, 525 U.S. at 90 (quoting New York v.
Burger, 482 U.S. 691, 700 (1987)).

   Moreover, the purpose for which one goes abroad can determine
whether an expectation of privacy is legitimate. See, e.g., United
States v. Higgins, 282 F.3d 1261, 1271 (10th Cir. 2002); Gamez-
                        UNITED STATES v. GRAY                          9
Orduño, 235 F.3d at 458. Indeed, those who venture forth to conduct
illegal business often do not hold a legitimate expectation of privacy
in locations that are not their own. Someone who hides illegal activity
in a vacant field or abandoned warehouse, for example, takes his or
her chances that law enforcement officials will happen upon incrimi-
nating evidence.

   The distinction between business and social guests also draws upon
the fact that a social host often shares not only his home but also his
privacy with his guest. See Olson, 495 U.S. at 99. Many social guests
entrust their hosts with the safety and security of both their persons
and their belongings. An overnight guest, for example, seeks shelter
in another’s home "precisely because it provides him with privacy, a
place where he and his possessions will not be disturbed." Id. The
same generally cannot be said of business visitors. Often strangers
with little or no connection to a residence, business associates may or
may not have reasons for mutual trust. To expand the protections
afforded by the Fourth Amendment to cover any such caller, does not
map onto "the everyday expectations of privacy that we all share." Id.
at 98.

                                  III.

  The facts of this case suggest that Askew was a business, not a
social, guest.3 There can be no doubt that at the time of his arrest
Askew was using Gray’s apartment to traffic in drugs.
   3
     Askew, of course, maintained a legitimate expectation of privacy in
his person within Gray’s residence. Accordingly, Askew has "standing"
to challenge the pat down search of his person. But searches incident to
lawful arrest are a longstanding exception to the warrant requirement.
See Michigan v. DeFillippo, 443 U.S. 31, 35 (1979). The district court
properly concluded that given the circumstances (Askew was standing
next to a set of digital scales and substances appearing to be crack and
cocaine) "the officers had probable cause to believe that Mr. Askew was
committing a felony." As a result, the search of Askew’s person was
incident to lawful arrest, and the evidence obtained from the search is
clearly admissible. Likewise, the district court correctly concluded that
"all statements made [by Askew] during th[e] pat down search were vol-
untary," and thus admissible. Indeed, Askew does not challenge the dis-
trict court’s suppression order on these grounds.
10                      UNITED STATES v. GRAY
                                   A.

   At the outset, the evidence adduced at the suppression hearing
itself suffices to establish that Askew was selling drugs out of Gray’s
home. In its order denying Askew’s motion to suppress, the district
court found the following facts. The task force’s investigation began
when neighbors complained that certain individuals were running a
drug ring out of Gray’s residence. When the officers arrived, Askew
was standing beside a table and identified himself as Rico Green. The
table contained a set of digital scales and what appeared to be both
cocaine base and cocaine. And Askew had $8,000 in cash hidden in
his front pants pocket.

   The suppression hearing revealed further undisputed facts which
also support the conclusion that the Gray-Askew relationship was a
commercial, rather than social, one. For example, Askew had a plastic
baggie containing cocaine base hidden in his shoe. On the day of the
search, Askew did not have a key to the apartment; had been there for
only a short time; and was only one of several visitors. He was not,
the district court found, "planning on spending the night."

   At the close of the suppression hearing, the district court concluded
based on these facts and circumstances "that Mr. Askew did not have
a reasonable expectation of privacy in Mr. Gray’s home." The court
noted that Askew was not an overnight guest, and had not "demon-
strated any equivalent reason for his having a legitimate expectation
of privacy in [Gray’s] home." As a result, the district court denied
Askew’s Fourth Amendment claim, explaining that he "lack[ed]
standing to challenge the officers’ entry into Mr. Gray’s home on July
3, 2003 and the search and seizure subsequently conducted pursuant
to a warrant authorizing a search of Mr. Gray’s home."

   In short, the district court had more than enough evidence to sup-
port its finding "that Mr. Askew did not have a reasonable expectation
of privacy in Mr. Gray’s home." Indeed, the dissent acknowledges
that Askew used Gray’s apartment for "his own business purpose":
drug dealing. See infra at 40. In seeking to overturn the district court’s
ruling, however, the dissent dismisses Askew’s use of Gray’s apart-
ment "for his own business purpose" as a "factor," see infra at 40, and
closes its eyes to the drugs, cash, weapons, and customers that are the
                         UNITED STATES v. GRAY                            11
wherewithal of a flourishing drug business. These facts, however,
reveal that the Gray-Askew relationship was a commercial one. We
hold that the district court correctly concluded that Askew had no
legitimate expectation of privacy in the Altizer Avenue apartment.

                                     B.

  While the evidence found by the district court in its suppression
order itself suffices to uphold the district court’s suppression ruling,
nothing prohibits our review of confirmatory facts adduced later in
Askew’s presentence report and sentencing hearing, so long as infor-
mation obtained from Gray’s parallel proceeding is not used against
Askew.

   The dissent objects, however, to use of later, confirmatory facts
found by the district court at sentencing after full due process protec-
tions were accorded to the defendant — facts which only serve to
confirm what was, in any event, the district court’s evidently sound
and correct suppression ruling. The idea that district or appellate
courts should somehow close their eyes to facts that only bear out the
correctness of a district court’s initial view is at odds with both com-
mon sense and the aims of the criminal justice system. While the dis-
sent may be fearful that these subsequent facts serve to underscore the
correctness of the suppression ruling, it is utterly unremarkable that
a court should take note of facts developed after a defendant had
every opportunity to object to them.4
  4
    The dissent tries to argue that this ruling is "far- reaching" and "un-
precedented." See infra at 26-27. That is incorrect. In fact, the dissent
does not contend that any of the facts from the sentencing hearing were
anything other than accurate, anything other than confirmatory of the dis-
trict court’s suppression decision, or anything other than relevant to the
nature of Askew’s presence in Gray’s residence. How this can somehow
be of much significance is beyond us unless the judicial process is pre-
pared to renounce its character and close its eyes to evidence. The only
unprecedented development would be an artificial ruling precluding the
use of concededly accurate facts in all suppression rulings. In fact, the
dissent must resort to hypotheticals to voice its concerns, see infra at 33,
and it goes without saying that the dissent’s hypothetical is just that. As
for reaching out to make a ruling on the point, the dissent is in no posi-
tion to take issue, believing as it does that the facts developed in the sup-
pression hearing were insufficient to affirm the district court. While that
is not our own view, the dissent should hardly complain about facts that
serve only to reinforce the correctness of judicial rulings.
12                      UNITED STATES v. GRAY
   This court has recognized that when later proceedings confirm the
correctness of the district court’s findings, we can affirm a pre-trial
suppression ruling based on such evidence. See, e.g., United States v.
Han, 74 F.3d 537, 539 (4th Cir. 1996) (citing cases); see also United
States v. Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1992); United States
v. Corral, 970 F.2d 719, 723 (10th Cir. 1992). This ruling makes
sense because all the facts pertinent to a suppression motion are not
inevitably developed at a pre-trial hearing and both the trial court and
the appellate court should not be precluded from taking note of a
more comprehensive record supporting, as it does here, the district
court’s initial denial of the motion to suppress. See Hicks, 978 F.2d
at 725. In adopting a contrary approach, the dissent would create an
artificial barrier against ascertainment of truth, lowering the curtain
well before the end of the play.

   The whole idea of cordoning off suppression hearings and keeping
them free from the supposed "taint" of subsequent sentencing pro-
ceedings is an artificial one. In either setting, a defendant has every
opportunity to object to unreliable or untruthful evidence. See United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (holding that a
defendant may rebut or explain away evidence compiled in the pre-
sentence report). Indeed, Federal Rule of Criminal Procedure 32 is
replete with procedural safeguards that afford the defendant and his
attorney ample opportunity to present, orally and in writing, objec-
tions to anything in the presentence report. See Fed. R. Crim. P.
32(e)(2), (f)(1), (i)(1)(A), (i)(1)(C), (i)(1)(D); see also U.S.S.G.
§ 6A1.3 (2006). The Sentencing Guidelines reinforce these protec-
tions requiring the district court to "resolve with care" any disputed
issues of fact which may bear on sentencing. U.S.S.G. § 6A1.3 (2006)
(commentary). And a wrongly maligned defendant has every incen-
tive to explain away any inaccuracy — often on pain of additional
prison time. Notwithstanding all this, the dissent makes the astonish-
ing suggestion that sentencing proceedings are not adversarial. See
infra at 27-28. If this is true, then one wonders why counsel must be
present, why defendant is given every opportunity to object, and why
innumerable rules exist both to ensure accuracy and to safeguard a
defendant’s interests at sentencing.

   There is no dispute that Askew received the benefit of all of these
safeguards: His sentencing procedure complied with the Sentencing
                         UNITED STATES v. GRAY                          13
Guidelines and the Rules of Criminal Procedure. Askew was provided
with a copy of the presentence report, and, through his legal counsel,
made three written objections. In support of these objections he sub-
mitted a thirteen page memorandum to the district court on February
24, 2005, and a second supplemental sentencing memorandum on
March 7, 2005. At the sentencing hearing, the district court deter-
mined that Askew had been given an opportunity to read the report,
had discussed it with his lawyer, and understood its contents. The
court then held an evidentiary hearing, made findings of fact, and
examined and heard oral argument on each of defendant’s objections.
The district court ruled on each of defendant’s objections; adopted,
with modification, the presentence report; and gave Askew a final
opportunity to speak on any topic, asking "Mr. Askew, [is there] any-
thing you’d like to say?" These extensive procedures afforded Askew
every facet of due process. Further, the district court and this court
have not moved beyond facts as adopted by the district court. Askew
had every opportunity to, and did, challenge those facts below. Due
process requires nothing more.

   Under the dissent’s inflexible view, however, never under any cir-
cumstance may evidence in a sentencing proceeding be used to con-
firm (or to rebut) a prior suppression ruling — no matter how reliable
or relevant the evidence. In this, the dissent denies to the district court
in the first instance and later to appellate courts the discretion to
ascribe to evidence the weight it is entitled. To so rigidly bind the
hands of a court in the face of probative evidence is per-seism at its
worst.

   It takes no clairvoyance to understand that the dissent envisions
formalized suppression hearings themselves imbued with trial-like
trappings. But, of course, suppression hearings, while properly obser-
vant of due process, are not meant to replicate trials. See, e.g., United
States v. Matlock, 415 U.S. 164, 175 (1974) (holding that there is "no
automatic rule against the reception of hearsay evidence in [suppres-
sion] proceedings"). Under the dissent’s view, not only would evi-
dence be suppressed at trial, but there would now be suppressions
from suppression rulings on the grounds that trial-like procedures are
not in place. To adopt the dissent’s approach would thus pile suppres-
sion upon suppression — at no small cost to the ascertainment of
truth.
14                      UNITED STATES v. GRAY
   The dissent’s protestations aside, nothing in our ruling will "dis-
courage the use of conditional guilty pleas and force more trials." See
infra at 37-38. A defendant will plead guilty when he gets a good deal
and he will enter a conditional plea when he believes there is fair
prospect that his Fourth Amendment claim will be sustained. None of
this self-interested calculation is affected by our ruling in the least,
because facts damaging to the defendant’s suppression motion may
also be uncovered if a defendant goes to trial.

   The dissent argues, however, that to look to Askew’s presentence
admissions to confirm the correctness of a suppression ruling would
vitiate the requirement that a guilty plea be deemed knowing and vol-
untary. See infra at 35-36. This is hardly the case. Federal Rule of
Criminal Procedure 11 sets out the "information a court is to convey
to assure that a defendant who pleads guilty understands the conse-
quences of the plea." Reno v. Koray, 515 U.S. 50, 65 (1995) (Gins-
burg, J., concurring). With respect to the "consequences of the plea,"
Congress amended Rule 11 to "identif[y] more specifically what must
be explained to defendant": A court must "inform the defendant of
and determine that he understands ‘the mandatory minimum penalty
provided by law, if any, and the maximum possible penalty provided
by law for the offense to which the plea is offered.’" Fed. R. Crim.
P. 11 (advisory comm. 1974 n.).

   No one contends that the district court failed to comply with Rule
11’s requirements here. Under Rule 11, there is no requirement that
a judge inform a defendant about a number of collateral consequences
of a guilty plea, such as parole eligibility, the fact that a jury might
find him guilty of a lesser included offence, or that he might be sub-
ject to additional punishment by reason of his or her prior conviction,
Fed. R. Crim. P. 11 (advisory comm. 1974 n.), much less a require-
ment that defendant be informed of the "full consequences" of his tell-
ing of the truth, see infra at 35. "As we have stated previously, the
district courts are wholly capable of guaranteeing that guilty pleas are
knowing and voluntary without flyspecking on the appellate level."
United States v. Wilson, 81 F.3d 1300, 1308 (4th Cir. 1996).

   Quite beyond the dissent’s novel gloss on Rule 11, neither the gov-
ernment nor a defendant has any right to expect that the disposition
of a suppression motion should be made on something other than the
                        UNITED STATES v. GRAY                         15
facts of a case. The criminal justice system retains an interest in reli-
able suppression rulings. That interest would be undercut if the sup-
pression of reliable evidence from suppression rulings were
henceforth to be the standard.

   The dissent makes much of the fact that the purpose of a sentencing
hearing is sentencing, not suppression. Something is either true or it
is not. A fact does not become true for sentencing purposes and false
for some other purpose. If this logic were followed to its endpoint,
evidence adduced at trial would also be out-of-bounds — for the pur-
pose of a trial is ascertainment of guilt, not suppression. This view is
foreclosed by our precedent which plainly allows for the consider-
ation of post-suppression trial evidence. See Han, 74 F.3d at 539.

    The dissent perceives a great injustice here because "[b]oth sides
. . . understood that [sentencing] evidence . . . would be used only to
determine an appropriate sentence." See infra at 37. This is not the
case. While the plea agreement expressly prohibits the government
from using such testimony "in any further criminal prosecutions or in
determining the applicable guideline range," it contains no reference
to, and thus no limitation on, the applicability of sentencing proceed-
ings to the suppression ruling.

  Defendant Askew obviously understood as much because he raised
an objection to the presentence report on this very point. There,
Askew objected to "any inference or any other statements in the pre-
sentence investigation report that states or tends to show that the
search conducted of Mr. Gray’s apartment was a legal search and sei-
zure." The objection was deferred to the sentencing hearing, where it
was repeated and subsequently overruled by the district court.

   Put simply, nothing in the proceedings below requires the court to
disregard evidence that might provide some insight to the correctness
and appropriateness of the suppression ruling. To find otherwise
would remove from courts the ability to ensure that their own sup-
pression orders, whether granted or denied, are based upon a full and
accurate set of facts. Courts do retain an interest in having their own
orders not be shams. Moreover, had the evidence developed at sen-
tencing been beneficial to the defendant, he would have no doubt
urged this court to consider it when reviewing the suppression ruling.
16                      UNITED STATES v. GRAY
In fact, defendant Gray argues before this court that evidence from the
sentencing hearing supports his claim that the district court erred
when it refused to suppress the testimony of Cole and Wallace, on the
grounds that the testimony was too closely linked to a nonconsensual
search. Gray, like any defendant, has the right to do this: the principle
is not a one-way street, but one designed to ensure the accuracy and
integrity of judicial rulings.

   In sum, where, as here, the defendant has had adequate opportunity
to object to the report; and the district court has adopted the presen-
tence findings as reliable after consideration of defendant’s objec-
tions, it is perfectly appropriate for an appellate court to take
cognizance of confirmatory facts contained within the report.

                                   C.

   In the case at hand, facts developed in Askew’s Presentence Inves-
tigation Report and adopted by the district court as well as Askew’s
sentencing testimony leave no doubt that the district court correctly
concluded that Askew’s actions, viewed in their totality, left him with
no legitimate expectation of privacy in the Altizer Avenue apartment.
Indeed, to ignore relevant subsequent evidence on the considerable
scale of Askew’s drug operation would do a disservice both to the dis-
trict court and to the notion that the criminal justice system should not
lightly construct arbitrary barriers to the ascertainment of truth.

   For example, Askew’s Presentence Investigation Report as adopted
by the district court revealed that the search of Gray’s apartment
recovered "cocaine base along with a .45 caliber semiautomatic
Glock, a magazine and fifteen rounds, one box of 12-gauge shotgun
slugs and drug paraphernalia." Askew’s own presentence statements
further confirm that the Gray-Askew association was a business one;
Askew admitted to making an "agreement to pay Gray for selling
drugs out of his house." The court concluded that the testimony indi-
cated that Askew "was clearly involved in the trafficking of substan-
tial amounts of cocaine base."

   While the terms of the Gray-Askew agreement were never formal-
ized, the district court’s sentencing hearing findings also confirm that
the Gray-Askew association was a business one. "[E]very factual ele-
                        UNITED STATES v. GRAY                         17
ment," including the cash, scales, and presence and proximity of a
gun, indicated that 5411 Rear Altizer Avenue was operating as a
"crack house," the court noted. The court found no "other rational
explanation for [$8,680] cash being carried on a person under these
circumstances." In light of these facts, the district court was "con-
vince[d]" that Gray and Askew "were doing drug business." In the
district court’s view, Askew’s "explanation of saving [the cash] for
college . . . just carr[ying] it around in the pocket of his pants, just
doesn’t measure up." "I find that beyond a reasonable doubt," the
court stated. The district court’s factual finding — that it was not col-
lege tuition rolled up in Askew’s pants pocket — along with other
facts brought to light during Askew’s sentencing proceedings, con-
firms the correctness of the district court’s conclusion that Askew had
no legitimate expectation of privacy in Gray’s home.

                                   D.

   Askew argues, however, that other facts point to the existence of
a social relationship. According to Askew, he would visit Gray four
or five times a week, spending several hours. They would watch tv,
play video games, and "do other things" around the house. Askew
kept a change of clothes, a toothbrush, and his Playstation console at
Gray’s home. Askew also testified that Gray had, on occasion, lent
him a key and allowed him to spend the night. For his part, however,
Gray could not remember any night during which Askew had stayed
at the Altizer apartment.

   Askew’s recitation is less than a half-told tale and ignores exten-
sive evidence before the district court. We are hard pressed to find
that the presence of scattered personal possessions are sufficient to
transform what was essentially a business relationship into a social
one. If a change of clothes was sufficient to create a legitimate expec-
tation of privacy, the Supreme Court’s insistence that an expectation
of privacy in commercial premises is "less than" the corresponding
expectation of privacy in a home would be rendered meaningless. See
Carter, 525 U.S. at 90. We also decline to create a toothbrush or Nin-
tendo rule that would inflexibly mark a relationship as social in the
face of testimony of extensive drug operations, replete with scales,
large amounts of cash, neighborhood complaints, and multiple cus-
tomers. Social interaction is, of course, incidental to many business
18                      UNITED STATES v. GRAY
dealings. But were we to accept Askew’s argument, the ancient
maxim that a man’s home is his castle would be turned on its head:
a defendant’s "castles" would dot the countryside. For not only would
every person planning illegal activity have a legitimate expectation of
privacy in his own home, but also in the home of every acquaintance
where he could stash some personal belongings.

   To be sure, not everyone who uses an illegal substance in someone
else’s home is thereby transformed into a business guest. Here, how-
ever, Askew did not go to Gray’s apartment simply to use drugs;
rather, the evidence shows that Askew used Gray’s home to turn a
profit. He ran his drug ring from the Altizer Avenue apartment: regu-
larly selling cocaine base to multiple customers in the manner of a
commercial enterprise.

   Askew nonetheless claims that the time he spent in the apartment
is alone sufficient to bring him within the ambit of the Fourth Amend-
ment. We disagree. The fact that Askew engaged in a series of drug
transactions, rather than a single drug sale, does not transform his
asserted expectation of privacy into one "the law recognizes as legiti-
mate." Rakas, 439 U.S. at 144 n.12. A business transaction does not
change character simply because it is repeated. We reject a rule that
accords members of ongoing drug operations heightened constitu-
tional protection.

   The dissent contends that "Askew was accepted into Gray’s house-
hold" and that, given his "long-established and meaningful connec-
tions to both Gray and Gray’s apartment, Askew could reasonably
expect that his privacy would not be disturbed." See infra at 41 (alter-
ations omitted). But, in its order denying suppression, the district
court found that Askew was a mere "visitor" who had no "reasonable
expectation of privacy in Mr. Gray’s home."

   Askew’s attempt to fit his case within the holding of Jones v.
United States, 362 U.S. 257 (1960), also fails. The defendant in that
case, Jones, was essentially house-sitting. The apartment belonged to
Jones’s friend, Evans, who had gone out of town for "about five
days." Id. at 259. Evans had given Jones the use of the apartment, and
a key, with which Jones admitted himself on the day of the search.
Id. Except with respect to the owner, "Jones had complete dominion
                       UNITED STATES v. GRAY                        19
and control over the apartment and could exclude others from it."
Rakas, 439 U.S. at 149 (interpreting Jones, 362 U.S. 257).

   Askew cannot claim similar "dominion and control" over the
Altizer Avenue apartment. On the day of the search, he did not have
a key and was not planning on spending the night. There was no evi-
dence that Askew exercised control or dominion over the residence,
or that he had any private space in the home, as one would often
expect with a social guest. And nothing suggests that he could have
excluded the police or anyone else from the apartment. Moreover, the
Supreme Court has repeatedly cautioned that the holding in Jones
must not be extended beyond its specific facts. See, e.g., Carter, 525
U.S. at 89-90; Rakas, 439 U.S. at 149; compare infra at 42 ("Askew
need not show that his case is identical to Jones.").

   This court’s precedent also supports the fact that Askew does not
have a legitimate expectation of privacy in Gray’s residence. While
we have recognized that persons other than overnight guests can have
a legitimate expectation of privacy in the home of another, we have
done so in the context of social visitors with near-familial relation-
ships. Bonner, 81 F.3d at 475. In Bonner, the court allowed plaintiff
in that case, Joyce Bonner, to assert a Fourth Amendment right in her
section 1983 action. We emphasized the depth of the social relation-
ship in that case: Bonner was a frequent visitor at Ms. Mealey’s, a
woman whom she and other community members called "Grandma";
her half-sister had been raised in Ms. Mealey’s home; and she had
previously lived in a neighboring building on the Mealey property. Id.
at 475. In view of these social connections, we concluded that "Bon-
ner’s activities — visiting a neighbor and assisting the elderly —
establish[ed] an expectation of privacy that is ‘recognized and permit-
ted by society.’" Id. at 475 (quoting Olson, 495 U.S. at 100) (emphasis
added). Askew’s drug trafficking activities are not rooted in similar
understandings. Indeed, Bonner distinguished the situation presented
here, noting that Bonner’s case "differs from that of defendants . . .
who are unable to suppress evidence because they have no legitimate
expectation of privacy in the place searched." Id.

  In short, Askew "treated the apartment as a base for his business
operations, not as a sanctuary from outsiders." United States v. Hicks,
978 F.2d 722, 724 (D.C. Cir. 1992). The Tenth Circuit made this pre-
20                      UNITED STATES v. GRAY
cise point when it held that a "business invitee who had permission
from the owner to be on the premises for a specific purpose — to
clean and repair the property" did not have "an objectively reasonable
expectation of privacy in the premises that society [wa]s prepared to
accept." Higgins, 282 F.3d at 1270. Similarly, in United States v.
Perez, 280 F.3d 318, 338 (3d Cir. 2002), the Third Circuit affirmed
the district court’s denial of defendant’s motion to suppress evidence
because the court found "no evidence that [defendants] were at [a
third party’s] apartment for any purpose other than to engage in drug-
related activities." Therefore, defendants had demonstrated no reason-
able expectation of privacy in the apartment "that would permit them
to claim the protection guaranteed by the Fourth Amendment." Id. at
336.

   Finally, we note that although an individual can have an expecta-
tion of privacy in his workplace, see O’Connor v. Ortega, 480 U.S.
709 (1987), Askew does not claim such an expectation here. Even
viewing Askew’s Fourth Amendment challenge through the lens of
commercial privacy, however, that challenge must fail. While the
Supreme Court has held that a worker may have a reasonable expecta-
tion of privacy in the desk and file cabinets located in his own private
office, see id. at 718-19, Askew was not in his own private office, but
was conducting an extensive drug operation from someone else’s
home. A defendant cannot simply co-opt another’s dwelling for ille-
gal business enterprises. Thus, in Minnesota v. Carter, the Supreme
Court distinguished similarly situated defendants who were "essen-
tially present for a business transaction" from the "worker in
O’Connor [who] had . . . his own private office." 525 U.S. at 90-91.

   To sum up, the district court made the following findings: that
4511 Rear Altizer Avenue was operating as a "crack house"; that
Gray and Askew "were doing drug business"; that Askew "was
clearly involved in the trafficking of substantial amounts of cocaine
base"; that Askew "did not have a reasonable expectation of privacy
in Mr. Gray’s home"; and that Askew had in fact demonstrated no
reason "for his having a legitimate expectation of privacy in [Gray’s]
home." These conclusions rested in part upon the district court’s abil-
ity to observe the demeanor of those witnesses involved, not least
among them Askew himself. We thus conclude, in accord with sub-
stantial authority, that because Askew’s purpose at 4511 Altizer Ave-
                        UNITED STATES v. GRAY                         21
nue was patently commercial, he had no legitimate expectation of
privacy in Gray’s residence, and we affirm the district court’s denial
of Askew’s motion to suppress the evidence discovered therein. See,
e.g., Perez, 280 F.3d at 337 (holding no legitimate expectation of pri-
vacy where defendants were "in another’s apartment for a short time
for the business purpose of packaging cocaine"); Higgins, 282 F.3d
at 1270-71 (holding no "objectively reasonable expectation of pri-
vacy" where defendant was a business invitee engaging in metham-
phetamine production); United States v. Sturgis, 238 F.3d 956, 958-59
(8th Cir. 2001) (holding defendant "plainly lacked a reasonable
expectation of privacy in [a hotel] room" where defendant’s purpose
in visiting "was purely commercial"); Gamez-Orduño, 235 F.3d at
458 ("An individual whose presence on another’s premises is purely
commercial in nature . . . has no legitimate expectation of privacy in
that location.").

                                  IV.

                                   A.

   We now turn to Gray’s contention that the district court erred in
denying his motion to exclude the testimony of David Cole, Dora
Wallace, and Terrence Askew as the tainted products of an illegal
search. We note at the outset that since Gray had a legitimate expecta-
tion of privacy in his own dwelling he was plainly entitled to claim
the Fourth Amendment’s protections of the home. See, e.g., Agnello,
269 U.S. at 33. Based on its finding that Gray did not voluntarily con-
sent to the warrantless search, the district court correctly excluded all
of the physical evidence discovered by the search from the case
against Gray. The question presented here is whether Gray can also
exclude the witness testimony of Cole, Wallace, and Askew.

    Whether evidence is tainted fruit requires a two-step analysis. The
threshold question is whether testimonial evidence is the product of
an illegal search. New York v. Harris, 495 U.S. 14, 19 (1990). Even
if the evidence is the product of an unconstitutional search, it is none-
theless admissible if the causal connection between the evidence and
the illegal conduct is attenuated. Hudson v. Michigan, 126 S. Ct.
2159, 2164 (2006). The question is thus "whether, granting establish-
ment of the primary illegality, the evidence to which instant objection
22                      UNITED STATES v. GRAY
is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary
taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quota-
tion omitted).

   The "standards for suppression of witness testimony are stricter
than for physical evidence." United States v. Najjar, 300 F.3d 466,
479 (4th Cir. 2002). "[S]ince the cost of excluding live-witness testi-
mony often will be greater, a closer, more direct link between the ille-
gality and that kind of testimony is required." United States v.
Ceccolini, 435 U.S. 268, 278 (1978); Najjar, 300 F.3d at 479 (same).
Accordingly, "[t]he exclusionary rule should be invoked with much
greater reluctance where the claim is based on a causal relationship
between a constitutional violation and the discovery of a live witness
than when a similar claim is advanced to support suppression of an
inanimate object." Ceccolini, 435 U.S. at 280.

   The primary focus of attenuation analysis is whether or not the
deterrent purpose of the exclusionary rule is served by suppression.
Id. at 275-76; United States v. McKinnon, 92 F.3d 244, 247 (4th Cir.
1996). In making this determination, Ceccolini directs us to consider
first the "enormous cost" of "exclusion [that] would perpetually dis-
able a witness from testifying about relevant and material facts." Id.
at 277. The willingness of a witness to testify is a second factor that
"represents a significant attenuation of the link between the police
misconduct and its evidentiary fruits." United States v. Leonardi, 623
F.2d 746, 752 (2d Cir. 1980). As the Fifth Circuit put it, "One source
of attenuation . . . is to be found in the exercise of the codefendants’
own wills." United States v. Houltin, 566 F.2d 1027, 1032 (5th Cir.
1978). The court may also consider the role played by the illegally
seized evidence in gaining the witness’s cooperation; the proximity
between the illegal search, the decision to cooperate, and the actual
testimony; and the police motivation in conducting the search. See
Ceccolini, 435 U.S. at 279-80; McKinnon, 92 F.3d at 247-48.

                                  B.

   The testimony of David Cole and Dora Wallace is admissible under
this framework. To begin with, Gray’s challenge to Cole and Wal-
lace’s testimony does not meet Ceccolini’s threshold inquiry: the
                        UNITED STATES v. GRAY                        23
search was not a but-for cause of their testimonies. See Ceccolini, 435
U.S. at 274; Harris, 495 U.S. at 19. The discovery of Cole and Wal-
lace was unrelated to the illegal entry. It was pure happenstance that
Cole and Wallace walked up to Gray’s apartment to purchase drugs
after the search was underway, rather than during the officers’ lawful
surveillance. Indeed, the officers were investigating the Gray resi-
dence precisely because neighbors had complained of drug-related
foot traffic. This too suggests that the illegal entry was not a but-for
cause of Cole and Wallace’s testimony.

   Even if the testimonies of Cole and Wallace were the product of
an illegal search, but-for causality is a necessary, but not sufficient,
ground for suppression. Hudson, 126 S. Ct. at 2164. Since any link
between the testimonies and the unlawful search is attenuated, they
are admissible under Ceccolini. Cole and Wallace voluntarily chose
to speak with the officers. See Ceccolini, 435 U.S. at 276-77; Najjar,
300 F.3d at 479. As the district court found, Cole and Wallace’s "de-
cision to provide information to the officers was an exercise of free
will sufficient to attenuate the taint of the illegal search."

   Defendants argue, however, because both Cole and Wallace were
under subpoena to appear at trial, and because Cole’s testimony to the
grand jury was pursuant to a subpoena (Wallace did not show up),
their testimonies cannot be considered voluntary. But the initial state-
ments given by Cole and Wallace to drug enforcement officers were
not given under subpoena. Moreover, the fact that Cole and Wallace
were required to show up does not mean that they were compelled to
waive their own privileges and testify against Gray. We decline to
hold that a meticulous prosecutor who obtains a subpoena to ensure
that witnesses will be in the right place at the right time invariably
renders any subsequent testimony "involuntary." As the Fifth Circuit
found in similar circumstances, the fact that a refusal to testify
"risk[s] being cited for contempt" does not alone "render it involun-
tary." Houltin, 566 F.2d at 1032.

   Other factors support the district court’s conclusion that the link
between the unlawful entry and the testimony of Cole and Wallace is
an attenuated one. To begin with, the statements made by Cole and
Wallace merely provided background information relating to the
alleged drug conspiracy, its modus operandi, and the roles of the vari-
24                      UNITED STATES v. GRAY
ous players, not the evidence discovered during the illegal search. See
McKinnon, 92 F.3d at 247-48. Wallace’s testimony is also distant in
time from the illegal search — she waited more than six months to
give a statement to the police. And while Cole gave a statement to
police on the day of the search, he did not testify before the grand jury
for several months. Finally, there is no indication that officers con-
ducted the search in the hope of obtaining testimony from Cole or
Wallace. To suppress live witness testimony in such circumstances
would place an inordinate strain on the truth-seeking function of
courts while having a minimal deterrent effect on police behavior.

                                   C.

   Gray next contends that the district court should have granted his
motion to suppress Askew’s testimony. He argues that Askew’s testi-
mony was not voluntary because it was secured by a plea agreement
that Askew would not have made but for the illegally seized evidence
obtained from Gray’s home.

   We disagree. To begin with, Askew had no Fourth Amendment
right to object to evidence obtained from Gray’s home. See supra Part
II. Moreover, the existence of inculpatory evidence does not make a
defendant’s self-interested decision to bargain with the government
involuntary. To the contrary, Askew’s decision to offer his testimony
in exchange for the dismissal of one charge was not coercion, but a
deliberate and calculated choice motivated by his desire to receive a
lesser sentence. Askew could have chosen to go to trial or to plead
guilty without a plea agreement. Hard choices are choices nonethe-
less, and Askew’s decision, however difficult, was voluntary. Other
courts have held as much. United States v. Akridge, 346 F.3d 618, 630
(6th Cir. 2003) (testimony of codefendant testifying pursuant to a plea
bargain admissible as a product of free will); Leonardi, 623 F.2d at
752-54 (same); Houltin, 566 F.2d at 1032 (testimony of codefendants
testifying pursuant to use immunity admissible as a product of free
will).

   In search of a distinction, the dissent argues that each of these cases
involve circumstances where the identity of the testifying co-
defendant is already known to law enforcement officers pursuant to
an independent source. See infra at 46-47. But there is every reason
                         UNITED STATES v. GRAY                          25
to assume that where neighborhood complaints identified Rico Green
as the mastermind behind the Altizer Avenue drug trafficking ring,
lawful surveillance would have ultimately unearthed Rico Green’s
true identity. In any event, the point of those cases is that a defen-
dant’s choice to testify is a product of free will which may itself break
the causal connection between the testimonial evidence and the illegal
search.

   Even if this general proposition could somehow be brought into
question, the specifics of Askew’s agreement do not lend themselves
to a finding of involuntariness. His plea agreement, for example, was
distant in time from the constitutional violation. It was entered into
several months after the illegal search and thus a "product of detached
reflection." Ceccolini, 435 U.S. at 277. Finally, we may not ignore the
"enormous cost" of Gray’s invitation to "permanently silenc[e]"
Askew in light of the deterrent purpose of the exclusionary rule. Id.
at 277, 280. Where, as here, there is no indication that law enforce-
ment officers "searched with the intent of finding a willing and
knowledgeable witness" the deterrent effect of exclusion is minimal.
See Ceccolini, 435 U.S. at 280.5 In so ruling, we are mindful of the
Supreme Court’s admonition that the exclusionary rule must be "our
last resort, not our first impulse." Hudson, 126 S. Ct. at 2163.

                                    V.

  Intractability often suggests inevitability. So it is with illegal drugs.
We seem resigned to the matter as to some low-grade national fever
which we may never wholly shake.
  5
   Defendant Gray argues that, because Askew was questioned about the
evidence found in Gray’s apartment, illegally seized evidence was used
to gain Askew’s cooperation. See Ceccolini, 435 U.S. at 279. But this
again ignores the fact that the evidence obtained from the unlawful
search was admissible as to Askew. See supra Part II. Moreover, much
of the questionary evidence complained of by the defense — e.g., the
money found in Askew’s pocket and the cocaine base swallowed by
Askew — was independently admissible against Askew because the evi-
dence was obtained by search pursuant to lawful arrest. See supra note
3. As noted above, see id., the district court found that "all statements
[made by Askew] during th[e] pat down search were voluntary," not that
they were the result of interrogation. Id.
26                      UNITED STATES v. GRAY
   Viewed in macro terms, that may be true. Viewed in broad societal
terms, we may not be able to make much of a dent in the "drug prob-
lem." And yet viewed through the lens of a wrecked and shattered
life, drugs are not an abstract "problem," but an all too concrete trag-
edy. Our court system, while hardly the whole answer, still brings to
justice those who strip the lives of others of hope and potential and
leave them to the toils of addiction.

   Neither these nor any other observations would or should permit a
disregard of Fourth Amendment values. And the district court
accorded those values full respect. It ruled — properly — that the
search here was not consensual. It ruled — properly — that the physi-
cal products of that search must be excluded as to Gray. But it also
ruled — properly — that Askew did not have a legitimate expectation
of privacy in someone else’s apartment from which he dealt substan-
tial quantities of illegal drugs. The court’s rulings in their totality
respected our Constitution and declined to allow a marginal and spec-
ulative gain in deterrent effect to negate the role of courts in holding
accountable those who break our laws and profoundly wrong their fel-
low citizens. The judgment of the trial court is in all respects

                                                          AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

   First, I respectfully dissent from the majority’s decision to affirm
the district court’s denial of Terrence Askew’s motion to suppress
evidence found pursuant to the illegal entry by police into Joshua
Gray’s apartment. Today, the majority expands the scope of appellate
review of decisions on suppression motions in ways that are both
troubling and unprecedented. The majority becomes the first court to
hold that facts from a defendant’s sentencing investigation and pro-
ceeding may be used in deciding a suppression appeal. An overriding
problem with this new rule is that the procedures for establishing facts
relevant to sentencing do not permit the presentation, adversarial test-
ing, or judicial determination of facts with respect to suppression
issues. Thus, the majority overlooks principles of due process when
it allows suppression appeals to be decided by using facts from the
sentencing process.
                        UNITED STATES v. GRAY                         27
   The majority admits that this sea change is unnecessary, for it says
that "evidence found by the district court in its suppression order suf-
fices to uphold the district court’s suppression ruling." Ante at 11. Yet
so eager is the majority to establish a precedent that it strains to find
useable facts in Askew’s presentence report. Thus, the majority is
reduced to relying on the presentence report’s account of the items
seized (drugs, a gun, etc.) in the search of Gray’s apartment, even
though an undisputed list of these items was introduced in the sup-
pression proceedings. Principles of judicial restraint suggest that our
court should at least wait until facts from the sentencing process have
some bearing on the outcome of a suppression appeal before deciding
whether such facts may be considered. Nevertheless, the majority
presses on to decide an issue of far-reaching consequence that is
unnecessary to its judgment to affirm.

   The majority also relies on admissions that Askew made in his pre-
sentence interview to support its decision to affirm the denial of
Askew’s motion to suppress. When Askew entered a conditional plea
of guilty and preserved the right to appeal his suppression motion, he
could not have anticipated that his own statements made during sen-
tencing would be used against him by this court. Presentence inter-
views had never been used to decide suppression appeals, and the
government granted Askew immunity barring the use of his state-
ments in further prosecutions or in the determination of his guideline
range for sentencing purposes. As a result, the majority’s approach
raises serious questions as to whether Askew’s guilty plea can still be
regarded as knowing and voluntary. In any event, the majority has
ignored the principle of fair notice.

   Finally, in rejecting Askew’s suppression appeal, the majority
relies on the district court’s relevant conduct findings at Askew’s sen-
tencing hearing. This use of sentencing findings is also unprece-
dented, and in the long run it will detract from the vital process of
determining relevant conduct for sentencing purposes. Both sides will
now seek to relitigate suppression issues under the guise of contesting
relevant conduct. As a result, district judges will be under pressure to
guard against needless diversions in the sentencing process.

   In its use of evidence and factfinding from the sentencing process,
the majority abandons the approach followed (without controversy)
28                      UNITED STATES v. GRAY
by every other court of appeals in reviewing suppression issues. Until
today, these appeals were decided only on the basis of facts developed
through the traditional adversarial process in a suppression hearing
(or occasionally in a trial). One effect of the majority’s decision is to
marginalize the importance of factfinding conducted by district courts
at suppression hearings. Another is to impair the ability of defendants
to vindicate their constitutional rights on appeal. Yet another is to dis-
courage defendants from entering into conditional guilty pleas at all.

   Second, I respectfully dissent from the majority’s affirmance of the
district court’s order denying Askew’s suppression motion. The
majority affirms on the ground that Askew and Gray had a business
relationship, leaving Askew without a legitimate expectation of pri-
vacy in Gray’s apartment. Although the majority says that the district
court’s factfinding in the suppression ruling allows this conclusion, it
goes on to rely on evidence and factfinding from sentencing that have
heretofore been off limits in a suppression appeal. In any case, undis-
puted facts establish that Askew’s significant personal connection to
Gray and his apartment gave Askew a Fourth Amendment privacy
interest protecting him from unreasonable searches there.

   Third, I respectfully dissent from the majority’s affirmance of the
district court’s order that would have allowed Askew to testify at any
trial of the government’s case against Gray. Askew was discovered
as a potential witness during what the district court found to be the
illegal search of Gray’s apartment. Askew’s testimony should have
been excluded because it was the tainted product of the illegal search.

                                    I.

   As a result of complaints about drug activity, police went to Gray’s
Altizer Avenue apartment in Huntington, West Virginia, on July 3,
2003, to conduct a "knock and talk." The officers did not apply for
a search warrant because they knew their limited information did not
amount to probable cause. Still, when Gray came to the door, the offi-
cers managed to push past him and enter the apartment without his
consent. Once inside, the officers saw drugs, drug paraphernalia, and
another man, Askew, who spent most of his days and many of his
evenings as a guest at Gray’s apartment. The police conducted a pat
down search of Askew and found crack cocaine and a large amount
                        UNITED STATES v. GRAY                         29
of cash. At that point the police obtained a search warrant, conducted
a full search of the apartment, and seized drugs and evidence of drug
dealing. Gray and Askew were indicted on two counts of conspiracy
to distribute and possession with intent to distribute crack cocaine.

   The district court granted Gray’s motion to suppress all evidence
from the July 3, 2003, apartment search as it related to him. The court
denied Askew’s motion to suppress, holding that he lacked standing
to contest the search of Gray’s apartment. Thereafter, Askew entered
a conditional guilty plea to one count of the indictment, preserving his
right to appeal the district court’s order denying his motion to sup-
press. Gray also entered a conditional guilty plea to one count, pre-
serving his right to appeal the district court’s order allowing the
government to use the testimony of three witnesses, Askew, David
Cole, and Dora Wallace, who were discovered during the illegal
search of Gray’s apartment.

                                   II.

                                   A.

   The majority concludes that Askew and Gray had a business rela-
tionship that left Askew without a privacy interest in Gray’s apart-
ment. In what it acknowledges to be an unnecessary step, the majority
confirms this conclusion by taking facts from the record developed
during Askew’s sentencing process. In particular, the majority relies
on facts taken from Askew’s presentence interview (recounted in the
presentence report) and from the district court’s relevant conduct
findings at the sentencing hearing. (I discuss specific pitfalls in using
these sources in part II.B and C, infra.) In its most telling move, the
majority uses the presentence report to say the report "revealed that
the search of Gray’s apartment recovered ‘cocaine base along with a
.45 caliber semiautomatic Glock, a magazine and fifteen rounds, one
box of 12-gauge shotgun slugs and drug paraphernalia.’" Ante at 16
(quoting presentence report, J.A. 523) (emphasis added). This state-
ment conveniently overlooks that the items seized in the search were
revealed without objection in the suppression record long before the
presentence report was prepared. The search warrant with an attached
list of items seized was admitted into evidence at the suppression
hearing, a police witness discussed several of the items (cocaine base,
30                      UNITED STATES v. GRAY
ammunition box, and digital scales) at the hearing, and two govern-
ment memoranda submitted in the suppression proceedings listed the
items seized during the search.1 The majority uses the presentence
report rendition of the items seized rather than the suppression pro-
ceeding record for an obvious reason: it allows the majority to
announce the precedent-setting holding that presentence report facts
from third-party sources may be used to decide suppression appeals.

   The majority concedes that, as it views the case, none of the facts
it takes from the sentencing proceedings are necessary to affirm the
suppression ruling. These facts are simply "confirmatory," according
to the majority. Ante at 11. Restraint should have been the watchword
here. Instead, the majority has plunged ahead to establish a new rule
that threatens to weaken defendants’ rights in the suppression arena
and needlessly encumber the sentencing process.

   The procedures for establishing the facts relevant to sentencing do
not allow for the presentation, adversarial testing, or judicial determi-
nation of facts with respect to suppression issues. As a result, a defen-
dant’s due process rights may be violated when an appellate court,
like the majority today, relies on facts from a presentence report in
reviewing a suppression ruling.

   The majority’s error is exposed by an examination of the process
for preparing the presentence report (the basic document for sentenc-
ing) and for resolving any objections to the report’s factual assertions
that are relevant to sentencing. An essential purpose of the presen-
tence report is to provide the district court with facts that will assist
the court in determining an appropriate sentence. The probation offi-
cer collects and includes in the report a wide range of information
about the background, character, and conduct of the defendant. See 18
U.S.C. §§ 3552(a), 3661. The report encompasses a wide array of
hearsay and other information that is not subjected to adversarial test-
ing in a formal evidentiary proceeding. See U.S.S.G. § 6A1.3, com-
ment. (2006). The probation officer normally prepares the report after
interviewing the defendant and allowing him to give his account of
the offense and provide personal information about himself. The pro-
  1
   The search warrant with the attached list of items seized is not in the
joint appendix, but it is available as part of the district court record.
                        UNITED STATES v. GRAY                          31
bation officer then contacts the prosecution side to get its version of
the offense and any other information it might have about the defen-
dant’s activities and background. The victim of the crime is also inter-
viewed. Finally, the officer assembles other information helpful in
sentencing, including information about the defendant’s family
responsibilities and his criminal, medical, educational, financial, and
employment record. See 5 Wayne R. LaFave et al., Criminal Proce-
dure § 26.5(b) (2d ed. 1989).

   Because the purpose of the presentence report is to aid the district
court in sentencing, the procedures for resolving disputes about infor-
mation contained in the report are limited to matters relevant to sen-
tencing. Thus, "[w]hen any factor important to the sentencing
determination is reasonably in dispute, the parties shall be given an
adequate opportunity to present information to the [district] court
regarding that factor." U.S.S.G. § 6A1.3(a), p.s. (emphasis added).
The court then resolves the dispute at the sentencing hearing in accor-
dance with Rule 32(i) of the Federal Rules of Criminal Procedure. See
U.S.S.G. § 6A1.3(b), p.s. Rule 32(i) makes clear that a district court
need not resolve disputes over the content of a presentence report
when the "controverted matter . . . will not affect sentencing, or
[when] the court will not consider the matter in sentencing." Fed. R.
Crim. P. 32(i)(3)(B). These rules are designed to promote the "‘fo-
cused, adversarial resolution of the legal and factual issues’ critical to
sentencing" without the distraction of relitigating non-sentencing mat-
ters that might be contested on appeal. United States v. Blatstein, 482
F.3d 725, 731 (4th Cir. 2007) (quoting Burns v. United States, 501
U.S. 129, 137 (1991)).

   In short, suppression-related factfinding is not meant to be
reopened during the process for gathering sentencing facts that begins
with the preparation of the presentence report and ends with the sen-
tencing hearing. Facts that would have had some relevance at the sup-
pression hearing may well surface in the sentencing process. But
those facts are not subjected to rebuttal, other adversarial testing, or
judicial scrutiny insofar as they might be relevant to suppression. For
that reason they should not be used by an appellate court in reviewing
a suppression ruling.
32                       UNITED STATES v. GRAY
   Today marks the first time an appellate court has affirmed a pretrial
suppression ruling based on facts taken from a presentence report or
sentencing findings. This unprecedented step passes muster, the
majority believes, because an appeals court "may consider evidence
adduced at trial" to affirm a pretrial suppression motion. United States
v. Han, 74 F.3d 537, 539 (4th Cir. 1996). Considering facts from the
trial record in a suppression appeal makes some sense because the full
measure of constitutional and procedural protections governing the
development of evidence (for example, confrontation, cross-
examination, and compulsory process) are still available to the defen-
dant.2 Moreover, suppression issues have the potential to be reopened
during trial because the defendant may renew at trial a pretrial sup-
pression motion. See, e.g., Raddatz, 447 U.S. at 678 n.6 ("Nothing . . .
precludes renewal at trial of a motion to suppress evidence even
though such motion was denied before trial."). However, once a
defendant, with the agreement of the government, enters a conditional
guilty plea with the right to appeal a suppression ruling, the parties
have signaled that they are content to have the record closed for the
suppression appeal.

   Once guilt is established, and the preparation for sentencing begins,
suppression issues should be off limits. The procedural protections
attending the development and use of facts for sentencing are not
designed to, and may consequently fail to, afford the defendant fair
  2
    A defendant also has substantial constitutional and procedural protec-
tions at a pretrial suppression hearing, see United States v. Raddatz, 447
U.S. 667, 679 (1980), even though they do not equal those available at
trial. There is, of course, "no automatic rule against the reception of hear-
say evidence in [suppression] proceedings," United States v. Matlock,
415 U.S. 164, 175 (1974), but a witness offering hearsay testimony is
subject to cross-examination, see McCray v. Illinois, 386 U.S. 300, 313
(1967). In any case, elemental due process ensures that a defendant at a
suppression hearing retains the core of the rights to confrontation, cross-
examination, and compulsory process. See, e.g., United States v. Stewart,
93 F.3d 189, 192-93 n.1 (5th Cir. 1996); United States v. Macklin, 902
F.2d 1320, 1329-30 (8th Cir. 1990); United States v. De Los Santos, 810
F.2d 1326, 1335 (5th Cir. 1987); United States v. Bowe, 698 F.2d 560,
565 (2d Cir. 1983); United States v. Green, 670 F.2d 1148, 1154 (D.C.
Cir. 1981).
                        UNITED STATES v. GRAY                          33
consideration of his Fourth Amendment claim. Thus, it is not surpris-
ing that the majority has no company in its approach.

   An example illustrates why sentencing evidence should not be used
to decide a suppression appeal. Consider a defendant who, like
Askew, has entered a conditional guilty plea to a drug charge while
preserving a suppression appeal on the ground that he had a privacy
interest in the place searched, a friend’s apartment, where he was
found in possession of drugs and tools of the drug trade. Several
background facts are included in the presentence report that are rele-
vant to suppression, but do not bear materially on sentencing. In par-
ticular, the presentence report includes the hearsay statement of a
person (not a witness at the suppression hearing) who said that the
defendant was an infrequent visitor at the apartment and was not a
close friend of the lessee. The defendant objects to this statement on
the ground that it is incorrect and the source lacks credibility. The dis-
trict court overrules the objection because the facts in the statement
do not bear on the sentencing determination, and the court then adopts
the presentence report. After today the defendant is stuck with these
untested facts from his presentence report in any suppression appeal.
As a result, the majority’s approach paves the way for suppression
appeals to be decided with evidence that is not subjected to full and
fair adversarial testing.

   The majority attempts to justify its position by saying that "the
criminal justice system should not lightly construct arbitrary barriers
to the ascertainment of truth." Ante at 16. But restricting appellate
review to evidence that has been subjected to meaningful adversarial
testing is hardly an arbitrary barrier. Nor is it inconsistent with ascer-
taining the truth. Cf. California v. Green, 399 U.S. 149, 158 (1970)
(cross-examination, as the core of the adversarial process, is "the
greatest legal engine ever invented for the discovery of truth") (inter-
nal quotation omitted).

   The majority insists that excluding sentencing evidence from the
record to be considered in suppression appeals is at odds with "com-
mon sense and the aims of the criminal justice system." Ante at 11.
This language sounds good, but it should fool no one. It overlooks the
fact that our court today rejects the universal practice of deciding sup-
pression appeals without reference to the sentencing record. The over-
34                       UNITED STATES v. GRAY
drawn rhetoric also obscures what is actually at stake for the criminal
justice system. Like the majority, I fully believe that "[t]here is no
gainsaying that arriving at the truth is a fundamental goal of our legal
system." James v. Illinois, 493 U.S. 307, 311 (1990)(quoting United
States v. Havens, 446 U.S. 620, 626 (1980)). But it is also the case
that "various constitutional rules limit the means by which govern-
ment [and this court] may conduct this search for truth in order to pro-
mote other values embraced by the Framers and cherished throughout
our Nation’s history." James, 493 U.S. at 311. Because the procedural
safeguards attending to sentencing do not provide for a full and fair
airing of suppression-related facts, respect for a defendant’s due pro-
cess rights requires us to decide a suppression appeal on the facts
developed at the suppression hearing.3
  3
    The majority claims that today’s new rule "is not a one-way street,"
ante at 16, and will also allow defendants to rely on sentencing evidence
in a suppression appeal. In practice, however, this rule will be of little
benefit to defendants. First, the government has the statutory right to take
an interlocutory appeal from a pretrial ruling that suppresses or excludes
evidence in a criminal case. 18 U.S.C. § 3731. In that situation the defen-
dant has won a suppression motion, but he will have no sentencing evi-
dence to rely on in the interlocutory appeal. On the other hand, when the
defendant loses a suppression motion, both sides will be able to rely on
sentencing evidence in the defendant’s appeal of the adverse ruling. This
scheme gives the government an advantage. When the defendant loses a
suppression motion, the government will have the opportunity to use evi-
dence from the sentencing process to bolster its case in opposition to sup-
pression. A defendant who wins a suppression motion, and must defend
his favorable ruling in an interlocutory appeal by the government, has no
second chance to shore up his case for suppression. Second, the majori-
ty’s equal benefit example from this case is unconvincing. The majority
says that Gray in his appeal properly relies on sentencing evidence to
argue that the district court erred in denying his pretrial motion to sup-
press the testimony of Cole and Wallace as the tainted product of the ille-
gal search of Gray’s apartment. Gray’s reliance on this sentencing
evidence is futile, however, for the majority does not use the evidence
to reverse the district court; it affirms the decision that would have
allowed Cole and Wallace to testify.
  In any event, if the majority had used sentencing evidence to reverse
the district court’s ruling to admit the testimony of Cole and Wallace, it
would have been unfair to the government. Parties depend on district
                         UNITED STATES v. GRAY                          35
                                    B.

   In support of its conclusion that Askew and Gray had a business
relationship, the majority relies on Askew’s presentence interview
admissions as recounted by the probation officer in the presentence
report. The use of Askew’s own statements against him raises a dif-
ferent set of concerns than does the use of third-party evidence from
a presentence report. For a guilty plea to be deemed knowing and vol-
untary, the district court must first determine "whether the defendant
actually does understand the significance and consequences of [the]
particular decision [to plead guilty]." Godinez v. Moran, 509 U.S.
389, 401 n.12 (1993). At no point during his plea hearing was Askew
ever informed by the district court that his own statements made dur-
ing the sentencing process could be used against him in his suppres-
sion appeal. Of course, this omission is not the fault of the district
court. Because no court of appeals had ever considered sentencing
evidence in its review of a suppression motion before today, neither
the district court nor Askew had any reason to expect that Askew’s
complete cooperation during the sentencing process (which was
required of him under the terms of his plea agreement) might work
to his detriment in this appeal. Indeed, in his supplemental sentencing
memorandum Askew reminded the district court that his presentence
report admissions — the very admissions now relied on by the major-
ity — "should only be viewed by [the district court] in finding that
Mr. Askew has accepted responsibility for his actions, and for no
other purpose." J.A. 361-62. (emphasis added). This reminder was
based on the government’s plea agreement grant of use immunity to
Askew, which shielded his statements from use against him in "fur-
ther criminal prosecutions or in determining the applicable guideline
range" in his case. J.A. 230. Thus, Askew could not have been aware
of the full consequences of recounting his version of his offense to the
probation officer, and this circumstance raises serious questions as to

courts to rule on motions to suppress testimony on the basis of the evi-
dence presented in pretrial (or sometimes trial) proceedings. This time-
honored approach brings stability and reliability to the trial process, and
an appellate court should not second-guess district court decisions to
admit or exclude testimony on the basis of evidence that comes to light
later at sentencing.
36                      UNITED STATES v. GRAY
whether his conditional guilty plea can still be regarded as knowing
and voluntary.

   In sum, Askew could not have anticipated the Hobson’s choice that
the majority offers today to future defendants contemplating a condi-
tional guilty plea. Under the majority’s approach, full cooperation
during sentencing may turn out to be fatal to a Fourth Amendment
appeal. However grim his options, Askew surely had a right to make
a knowing choice between them. When he entered his conditional
plea of guilty, Askew did not know that by submitting to a presen-
tence interview he might end up a witness against himself in his sup-
pression appeal. Given this lack of notice, Askew’s own statements
should not be used by the majority today.

                                   C.

   In yet another first for appellate courts, the majority relies on the
district court’s relevant conduct findings at Askew’s sentencing hear-
ing to support its conclusion that Askew had no privacy interest in
Gray’s apartment. For example, the majority relies on the district
court’s findings about the cash recovered from Askew in connection
with its determination of drug weights attributable to Askew for sen-
tencing. A district court’s determination of the defendant’s relevant
conduct has long been recognized as a critical component of the fed-
eral sentencing process. See William W. Wilkins, Jr. & John R. Steer,
Relevant Conduct: The Cornerstone of the Federal Sentencing Guide-
lines, 41 S.C. L. Rev. 495 (1990). After today the relevant conduct
inquiry and determination will bear on more than sentencing. It will
also bear on the appeal of decisions on suppression motions. The rele-
vant conduct inquiry should be confined to the determination of an
appropriate sentence. It is bad policy to allow suppression issues to
creep into sentencing, and that will surely happen after today’s deci-
sion. Both the defendant and the government will now have every
incentive to attempt to relitigate suppression issues under the guise of
contesting relevant conduct. This diversion will detract from the "fo-
cused, adversarial resolution of the issues . . . critical to sentencing."
Blatstein, 482 F.3d at 731 (internal quotation marks and citation omit-
ted).
                         UNITED STATES v. GRAY                          37
                                    D.

   The majority fails to appreciate that its new approach will discour-
age the use of conditional guilty pleas, detract from the sentencing
process, and frustrate district judges. Under Fed. R. Crim. P. 11(a)(2)
"a defendant may enter a conditional plea of guilty . . . reserving in
writing the right to have an appellate court review an adverse determi-
nation of a specified pretrial motion," such as a motion to suppress.
If facts in a presentence report and evidence or findings at sentencing
can determine the scope of Fourth Amendment protections to be
decided on appeal, the likelihood that a defendant will choose to enter
a conditional guilty plea will be reduced. Conditional guilty pleas
have heretofore served an important purpose by "reliev[ing] the prob-
lem of congested criminal trial calendars in a manner that does not
diminish the opportunity for the assertion of rights guaranteed by the
Constitution." Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).

   Before today when a defendant entered a plea of guilty on the con-
dition that he could appeal a suppression ruling, both he and the gov-
ernment understood that the suppression appeal would be decided on
the record from the suppression hearing. Both sides also understood
that evidence provided to the probation officer and to the court in the
sentencing process would be used only to determine an appropriate sen-
tence.4 After today both sides will be providing information in the
  4
   Although the majority’s approach in using sentencing evidence to
determine the scope of a defendant’s Fourth Amendment rights is wholly
without precedent, the majority asserts that Askew somehow anticipated
that such evidence would be used in his suppression appeal. See ante at
15. This claim is not borne out by the record. Askew’s lawyer objected
to "any inference or other statements in the pre-sentence report that state
or tend to show that the police search of Mr. Gray’s apartment was a
legal search and seizure." J.A. 450; see J.A. 535. The objection, as
explained fully in the addendum to the presentence report, went to the
report’s reflection of law enforcement’s version of the search, which was
that Gray had consented to it. Thus, Askew’s lawyer pointed out in his
objection that the district court had ruled that "the search [of Gray’s
apartment] was illegal and this [ruling] should be noted in the Presen-
tence Investigation Report." J.A. 535. The objection — in light of the
scope of appellate review at the time it was made — is best understood
38                       UNITED STATES v. GRAY
sentencing process with the additional goal of making a better record
for appellate review of the suppression ruling. This practice will
diminish a defendant’s ability to assert his Fourth Amendment rights
on appeal. It will allow the government, with its substantial investiga-
tive resources, to steer facts of unassessed reliability into the presen-
tence report, facts that are aimed solely to bolster its case for
affirming the denial of the suppression motion. The overall effect will
be to discourage the use of conditional guilty pleas and force more tri-
als or straight guilty pleas that strip defendants of appeal rights.

   In short, the majority’s approach has nothing to recommend it, nei-
ther judicial economy, sentencing process integrity, nor protection of
defendants’ constitutional rights.

                                    III.

  I also respectfully disagree with the majority on the merits of
Askew’s suppression motion.

                                     A.

   The Fourth Amendment speaks of "[t]he right of the people to be
secure in their persons, houses, papers, and effects." U.S. Const.
amend. IV. Fourth Amendment rights are personal and "may be
enforced . . . only at the instance of one whose own protection was
infringed by [a] search." Rakas v. Illinois, 439 U.S. 128, 138 (1978)
(quoting Simmons v. United States, 390 U.S. 377, 389 (1968)). A per-

as an effort by Askew to avoid any waiver of his suppression appeal by
conceding that the search had been consensual. In ruling on the objec-
tion, the district court stated that "[t]he pre-sentence report doesn’t indi-
cate whether the search was legal or illegal." J.A. 451. Regardless of the
objection, the illegality of the officers’ entry and search was conclusively
decided by the district court and is not challenged on appeal. The only
issue in Askew’s appeal is whether he had a legitimate expectation of
privacy that was violated as a result of the unconstitutional search. There
is nothing in the record indicating that Askew anticipated that his expec-
tation of privacy would be determined on the basis of facts from the sen-
tencing process.
                        UNITED STATES v. GRAY                        39
son invoking the protections of the Fourth Amendment must have a
legitimate expectation of privacy in the place searched. Smith v.
Maryland, 442 U.S. 735, 740 (1979). More specifically, he must have
an actual (or subjective) expectation of privacy, and his subjective
expectation must be "one that society is prepared to recognize as rea-
sonable." Id. (internal quotation marks and citation omitted). "[A] per-
son 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, 439 U.S. at 142. For
example, the Supreme Court has recognized that legitimate expecta-
tions of privacy can be held by overnight guests, Minnesota v. Olson,
495 U.S. 91, 95 (1998), employees in shared offices, Mancusi v.
DeForte, 392 U.S. 364, 369 (1968), and persons making business
calls from public telephone booths, Katz v. United States, 389 U.S.
347, 353 (1967).

   The majority, in concluding that Askew lacked a legitimate expec-
tation of privacy in Gray’s apartment, proceeds as if the Supreme
Court in Minnesota v. Carter, 525 U.S. 83 (1999), categorically
removed business guests in another’s home from the protections of
the Fourth Amendment. But Carter did no such thing. The issue in
Carter was whether two men who used the apartment of a third man
for two and one-half hours for the sole purpose of bagging cocaine
had a legitimate expectation of privacy in the apartment. Neither of
the Carter defendants had a prior relationship with the tenant, and
they proffered no evidence showing "acceptance into the household."
Id. at 90. In return for their use of the apartment as "simply a place
to do business," id., the defendants paid the tenant with a small
amount of cocaine. The combination of "the purely commercial
nature of the transaction engaged in [ ], the relatively short period of
time on the premises, and the lack of any previous connection
between [the defendants] and the householder" led the Court to con-
clude that any search did not violate the defendants’ Fourth Amend-
ment rights. Id. at 91 (emphasis added).

   The facts in today’s case establish that Askew’s status is quite
unlike that of the Carter defendants, who had only a "fleeting and
insubstantial connection" with the apartment in question. Id. at 102
(Kennedy, J., concurring). Here, the district court found that "Askew
typically visited [ ] Gray four to five days a week, spending several
40                     UNITED STATES v. GRAY
hours each time he visited" Gray’s Altizer Avenue apartment. J.A.
152. This finding was based on Askew’s testimony that he generally
spent about six hours per day at Gray’s, but sometimes extended these
hours by staying late into the night. The court also found that Askew
"occasionally spent the night" at Gray’s. J.A. 152. This happened
"maybe four or five times," according to Askew. J.A. 107. "Askew
kept some personal items at [ ] Gray’s including a change of clothes,
a toothbrush, and his Playstation [video game] console," according to
the district court’s findings. J.A. 152. Finally, the court found that
when Askew was at Gray’s apartment, the two men "would watch
movies [together], play video games or do other things around the
house." Id. The district court’s findings are supported and amplified
by other undisputed facts presented at the suppression hearing. Askew
bought groceries for the Gray apartment and spent "some time" there
when Gray was not present. J.A. 108. On several occasions, Gray pro-
vided Askew with a key to the apartment, and Gray testified that
Askew "probably" had the authority to deny entry to third parties. J.A.
88. Askew’s privileges at Gray’s Altizer Avenue apartment were a
continuation of privileges Gray had extended to him at Gray’s previ-
ous apartment on Collis Avenue in Huntington, where Askew had
"spen[t] quite a few nights." J.A. 87. In sum, Askew and Gray had a
close personal relationship that prompted Gray to welcome Askew to
spend about a quarter of his daily life, including his leisure time, at
Gray’s apartment.

   The majority minimizes or ignores these facts — all taken from the
district court’s findings following the suppression hearing and from
evidence introduced at that hearing — and characterizes Gray and
Askew as having "essentially a business relationship." Ante at 17. In
any event, I do not contest that the evidence presented at the suppres-
sion hearing, when viewed in the light most favorable to the govern-
ment, supports an inference that Askew was using Gray’s apartment
in part for his own business purpose (drug dealing). The business
aspect is a factor to be weighed in determining whether Askew had
a legitimate expectation of privacy in the apartment. See Carter, 525
U.S. at 91; cf. New York v. Burger, 482 U.S. 691, 700 (1987) ("An
expectation of privacy in commercial premises, however, is different
from, and indeed less than, a similar expectation in an individual’s
home."). The drug dealing factor does not by itself resolve the matter,
however, because Carter did not draw a bright line rule between
                        UNITED STATES v. GRAY                         41
social and business guests by entitling the former to the protections
of the Fourth Amendment and disentitling the latter. See United States
v. Higgins, 282 F.3d 1261, 1271 (10th Cir. 2002). Indeed, the particu-
lar guest label affixed to Askew matters far less than whether he has
established a "meaningful tie or connection to the [tenant], the [ten-
ant’s] home or the [tenant’s] expectation of privacy." Carter, 525
U.S. at 102 (Kennedy, J., concurring).

   The circumstances of Askew’s regular presence at Gray’s apart-
ment make clear that he was the kind of "houseguest [who] has a
legitimate expectation of privacy in his host’s home." Olson, 495 U.S.
at 98. Askew was "accept[ed] into [Gray’s] household," Carter, 525
U.S. at 90, as shown by the frequency and length of his visits, his par-
ticipation with Gray in social activities at the apartment (playing
video games and watching movies), the personal possessions that he
kept there, his occasional possession of a key to the apartment, his
ability to spend time there alone, his purchase of groceries for the
apartment, and his probable authority to exclude others from the
apartment. Given his long-established and meaningful connections to
both Gray and Gray’s apartment, Askew could reasonably expect that
his privacy "w[ould] not be disturbed by anyone but his host and
those his host allows inside." Olson, 495 U.S. at 99.

   An expectation of privacy in Askew’s case is consistent with Car-
ter because in Carter the Court did not focus exclusively on the com-
mercial nature of the visitors’ conduct but also considered the "time
[they spent] on the premises" and whether there was "any previous
connection between [the visitors] and the householder." Carter, 525
U.S. at 91. Indeed, the majority’s misreading of Carter to give deter-
minative weight to the commercial aspects of visits that are both com-
mercial and social has been rejected by both the Ninth and Tenth
Circuits in the very cases the majority cites for support. Ante at 8; see
United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir. 2003)
(despite his joint participation in methamphetamine production at
another’s home, defendant’s "ongoing and meaningful connection" to
the home over a two-week period, including several overnight stays,
gave him standing to challenge search); United States v. Gamez-
Orduño, 235 F.3d 453, 459 (9th Cir. 2000) (defendants transporting
marihuana, who stayed as guests one night in the home of strangers,
had a legitimate expectation of privacy in that home). The Sixth Cir-
42                     UNITED STATES v. GRAY
cuit has also rejected the majority’s expansive reading of Carter. See
United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir. 2000) (defen-
dant selling cocaine out of another’s home had a legitimate expecta-
tion of privacy there because of his relationship to the householder,
his storage of personal belongings in the home, and his occasional
overnight stays there).

   Moreover, the majority’s reasoning is irreconcilable with Jones v.
United States, 362 U.S. 257 (1960). Although the majority describes
the defendant in Jones as "essentially house-sitting" in the apartment
of an absent friend, ante at 18, the facts recounted by the Supreme
Court make it abundantly clear that Jones was selling heroin out of
the apartment, Jones, 362 U.S. at 267-68 n.2. Jones had a key to the
apartment, kept a suit and shirt there, and had slept there "maybe a
night." Id. at 259. The fact that Jones was using the apartment as a
base for commercial conduct did not prevent the Supreme Court from
holding that a search of the apartment violated Jones’s Fourth
Amendment rights. Nor did Jones’s commercial activity prevent the
Court in Carter from explicitly reaffirming Jones’s holding. 525 U.S.
at 90. In attempting to distinguish this case from Jones, the majority
overstates the significance of the fact that Jones, unlike Askew, had
a key at the time of the search. In Minnesota v. Olson the Supreme
Court made clear that "untrammeled power to admit and exclude" is
not essential to gaining Fourth Amendment protection. 495 U.S. 91,
99-100 (1990). At any rate, Askew need not show that his case is
identical to Jones. Askew had a legitimate expectation of privacy in
Gray’s apartment because of his "on-going and meaningful connec-
tion" to Gray and the apartment. Rhiger, 315 F.3d at 1287.

                                 B.

   The majority’s holding that a person’s "patently commercial" use
of a place permits "no legitimate expectation of privacy," ante at 21,
creates another problem. This holding cannot be reconciled with the
well-established principle that an individual "may have a reasonable
expectation of privacy" in his place of work. See O’Connor v. Ortega,
480 U.S. 709, 719 (1987) (holding that a psychiatrist employed by a
state hospital had a reasonable expectation of privacy in his office);
Mancusi, 392 U.S. at 369 (holding that a union official had a reason-
                        UNITED STATES v. GRAY                        43
able expectation of privacy in office consisting of one room shared
with other officials).

   The majority describes Gray’s apartment as the locus of "a com-
mercial enterprise" with "multiple customers" where repeated "busi-
ness transaction[s]" occurred. Ante at 18. Likewise, Askew’s purpose
for being in the apartment is deemed "patently commercial." Id. at 21.
Yet the majority does not, and cannot, dispute that an individual can
have the kind of "significant [ ] connection" to his workplace that
entitles him to the Fourth Amendment’s protections. Carter, 525 U.S.
at 91. Thus, simply calling Askew’s conduct commercial does noth-
ing to answer the key question, that is, even assuming that Gray’s
apartment served as Askew’s regular workplace in the drug trade, did
Askew nevertheless have a legitimate expectation that his privacy
there would not be violated by warrantless police intrusion. The
majority attempts to dodge this question by contending that Askew
had no expectation of privacy in the apartment for two reasons: (1)
it "was not [ ] his own private office" and (2) "[a] defendant cannot
simply co-opt another’s dwelling for illegal business enterprises."
Ante at 20. These pronouncements do not defeat Askew’s privacy
expectations.

   First, it does not matter that Gray’s apartment was not Askew’s
"own private office." The union official in Mancusi shared his office
with other union officials, but his privacy interests in the office were
sufficient to allow him to challenge its warrantless search. The offi-
cial had Fourth Amendment protection because he could "reasonably
have expected that only [his officemates] and their personal or busi-
ness guests would enter the office." 392 U.S. at 369; see also Ortega,
480 U.S. at 730 (Scalia, J., concurring) ("[O]ne’s personal office is
constitutionally protected against warrantless intrusions by the police,
even though employer and co-workers are not excluded."). Second,
the record does not permit the conclusion on appeal that Askew co-
opted or appropriated Gray’s apartment to conduct illegal business.
Askew’s presence in Gray’s home was nothing but consensual. This
is not a case where a person lacks enforceable privacy rights because
he was on the premises of another without consent. See, e.g., United
States v. Jones, 213 F.3d 1253, 1260 (10th Cir. 2000). Thus, even if
the apartment is viewed as a workplace, the majority offers no cogent
reason for dashing Askew’s reasonable expectation of privacy.
44                      UNITED STATES v. GRAY
   In the end it appears that the majority’s decision would be the same
regardless of whether the apartment is treated as a home, a workplace,
or some combination of the two. The majority explains its wholesale
rejection of all of the evidence that establishes Askew’s ongoing per-
sonal connection to the apartment with one sweeping pronouncement:
"We reject a rule that accords members of ongoing drug operations
heightened constitutional protection." Ante at 18. But basic constitu-
tional protection is all that Askew seeks, and Fourth Amendment
rights have never hinged on whether a defendant’s activities were
innocent or criminal. Instead, the "guarantee of protection against
unreasonable searches and seizures extends to the innocent and guilty
alike." McDonald v. United States, 335 U.S. 451, 453 (1948). This
point is confirmed in Minnesota v. Olson, where the defendant had a
legitimate expectation of privacy as an overnight guest in a home
where he was essentially hiding because he was wanted for armed
robbery and murder. 495 U.S. at 94-95. As a leading commentator
explains, "to deny standing merely because it turns out the defendant
had a criminal purpose is in sharp conflict with the rationale underly-
ing the exclusionary rule." 6 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 11.3(b) at 162 n.141 (4th ed.
2004) (listing cases). Indeed, most "Fourth Amendment issues arise
precisely because the defendants were engaged in illegal activity on
the premises for which they claim privacy interests." United States v.
Fields, 113 F.3d 313, 321 (2d Cir. 1997). In short, the fact that Askew
engaged in illegal activity at the apartment does not foreclose him
from invoking the protection of the Fourth Amendment.

                                  C.

  Askew had a longstanding and meaningful connection to Gray’s
apartment as a regular guest with special privileges. As a result,
Askew had a legitimate expectation of privacy in the apartment that
was protected by the Fourth Amendment. The district court’s order
denying Askew’s suppression motion should therefore be reversed.

                                  IV.

   Finally, I respectfully disagree with the majority’s determination
that Askew could have testified against Gray. It is settled in this case
that the search of Gray’s apartment violated his Fourth Amendment
                         UNITED STATES v. GRAY                          45
rights. Askew’s prospective testimony against Gray was "so closely,
almost inextricably, linked" to the illegal search that it should have
been suppressed. United States v. Rubalcava-Montoya, 597 F.2d 140,
144 (9th Cir. 1978). Because Askew’s testimony was the tainted prod-
uct of the illegal search, I would reverse the district court’s order
denying Gray’s motion to exclude Askew’s testimony.

   The "degree of free will" exercised by a potential witness is critical
to determining whether his prospective testimony is sufficiently atten-
uated from an illegal search. United States v. Ceccolini, 435 U.S. 268,
276 (1978). The "time, place, and manner of [law enforcement’s] ini-
tial questioning of the witness" are examined to determine whether
his statements "are truly the product of detached reflection and a
desire to be cooperative." Id. at 277. The free will inquiry is supple-
mented by an examination of the following additional factors:

      whether the illegally-seized evidence was used in question-
      ing the witness; the time between the illegal search and ini-
      tial contact with the witness; whether the investigators knew
      of the relationship between the witness and the defendant
      prior to their illegal search; and whether the police con-
      ducted the illegal search intending to find evidence implicat-
      ing the defendant.

United States v. McKinnon, 92 F.3d 244, 247-48 (4th Cir. 1996) (cit-
ing Ceccolini, 435 U.S. at 279-80). Consideration of the Ceccolini-
McKinnon factors compels the conclusion that Askew’s prospective
testimony against Gray should have been suppressed. First, illegally
seized evidence formed the basis of police questioning of Askew: he
was asked about the cash and crack recovered from his clothing dur-
ing a warrantless search that violated his Fourth Amendment rights.
See supra part I.5 Askew’s decision to testify was hardly voluntary,
  5
   The district court admitted evidence found on Askew’s person
because the court found that this search was pursuant to his lawful arrest.
Of course, the arrest would only have been lawful if it had been based
on probable cause. See United States v. Robinson, 414 U.S. 218, 235
(1973). Probable cause for Askew’s arrest was purportedly established
with evidence from the initial (warrantless) search of the apartment that
ought to have been suppressed as to Askew just as it was with respect
to Gray. The police therefore lacked probable cause for Askew’s arrest,
which means that evidence from the pat-down search was illegally
seized.
46                      UNITED STATES v. GRAY
given what he faced. The district court erroneously concluded that
Askew could not challenge the police’s illegal entry into Gray’s apart-
ment. This meant that the evidence found (drugs, cash, etc.) would be
admissible against him. Second, no time elapsed between the illegal
search and the police’s initial contact with Askew. Third, before
unlawfully entering Gray’s apartment, the police had no knowledge
of the relationship between Gray and Askew, nor were they even
aware of the true identities of the two men. Fourth, the police knew
that they lacked probable cause when they arrived at Gray’s apart-
ment, so it is apparent that they took advantage of an opportunity to
push their way in, intent on finding evidence of drug dealing. These
factors, which the majority does not specifically consider, all demon-
strate a close link between the illegal search and Askew’s prospective
testimony.

   The majority focuses on Ceccolini’s free will factor, concluding
that Askew’s decision to testify against Gray was entirely voluntary.
Faced with the consequences of the district court’s erroneous ruling,
Askew entered into a plea agreement that required him to testify
against Gray in return for the dismissal of one of the two felony
counts against him. The circumstances surrounding Askew’s agree-
ment to testify "strongly suggest that he [would] not [be testifying] of
a free will uninfluenced by the initial illegality." United States v.
Ienco, 182 F.3d 517, 530 (7th Cir. 1999). Instead, Askew’s decision
was "dictated by his own precarious legal situation" resulting from the
district court’s admission of illegally seized evidence. Id.

   I recognize that there are many cases in which a co-defendant’s tes-
timony is sufficiently attenuated from the unlawful search as to be
admissible. In all of the cases cited by the majority, the identity of the
testifying co-defendant was already known to law enforcement in
advance of the illegal search. See United States v. Akridge, 346 F.3d
618, 627 (6th Cir. 2003); United States v. Leonardi, 623 F.2d 746,
752 (2d Cir. 1980); United States v. Houltin, 566 F.2d 1027, 1031
(5th Cir. 1978). In Houltin, for example, the testifying co-defendants
and their illegal activities had been "under extensive investigation for
narcotics smuggling activities" for several years before they were ille-
gally wiretapped. 566 F.2d at 1031 n.4 (internal quotation omitted).
The government’s independent knowledge of the co-defendants was
thus sufficient to overcome any link between the Fourth Amendment
                         UNITED STATES v. GRAY                          47
violation and their later decision to testify. In the matter before us, not
only were the police unaware of Askew’s true identity, the govern-
ment’s entire case against him was the product of the illegal search.
There is simply no attenuation to be found.

   Because the record before us shows an unbroken causal link
between the illegal search and Askew’s decision to testify against
Gray, I would reverse the district court’s determination that Askew’s
testimony was admissible.
