United States of America v. Joshua Berryhill

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0440P (6th Cir.)
File Name: 03a0440p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA BERRYHILL,
Defendant-Appellant.
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No. 02-5783
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00118—Curtis L. Collier, District Judge.
Argued: September 18, 2003
Decided and Filed: December 11, 2003
Before: BOGGS, Chief Judge; NORRIS and CLAY,
Circuit Judges.
_________________
COUNSEL
ARGUED: Lex A. Coleman, JOHNSON, MULRONNY &
COLEMAN, Chattanooga, Tennessee, for Appellant. Paul
W. Laymon, Jr., ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Lex A. Coleman, JOHNSON, MULRONNY &
COLEMAN, Chattanooga, Tennessee, for Appellant. Paul
2 United States v. Berryhill No. 02-5783
1Because we affirm the district court’s ruling that Berryhill lacked a
reaso nable expectation of privacy, we do not reach the question of
whether the search was reasonable. In ad dition, because we conclude that
the district co urt did not rely upon hearsa y testimony or up on B erryhill’s
failure to testify at the suppression hearing, we do not ad dress Berryhill’s
challenges to the denial of suppression on those grounds.
W. Laymon, Jr., ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
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OPINION
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ALAN E. NORRIS, Circuit Judge. Defendant Joshua
Berryhill appeals the denial of his motion to suppress
evidence seized from an apartment at which Berryhill was
present. Berryhill had been invited to the apartment by a
friend who was not the tenant. On appeal, he contends that
the district court erred in finding that he had no legitimate
expectation of privacy in the apartment. We affirm.1
The Fourth Amendment protects an individual from
unreasonable searches and seizures only where the individual
can show that: 1) “he manifested a subjective expectation of
privacy in the object of the challenged search[,]” and
2) “society is prepared to recognize that expectation as
legitimate.” United States v. Sangineto-Miranda, 859 F.2d
1501, 1510 (6th Cir. 1988) (citing California v. Ciraolo, 476
U.S. 207, 211 (1986)). Fruits of unreasonable searches of
locations in which an individual can show an actual and
reasonable expectation of privacy will be suppressed. Rakas
v. Illinois, 439 U.S. 128, 143 (1978) (citing Katz v. United
States, 389 U.S. 347, 353 (1967)).
The district court made a factual finding that Berryhill had
not been invited to the apartment by its tenant. United States
v. Berryhill, No. 1:01-CR-118, slip. op. at 4 (E.D. Tenn. Feb.

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

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No. 02-5783 United States v. Berryhill 5
the host would respect his privacy, having obtained the host’s
permission to be at the residence. Olson cannot be taken for
the proposition that guests’ visitors can be assured that their
privacy will be respected by the lawful owners or tenants of
the residence. Berryhill does not dispute that he never
received permission to stay at the apartment directly from its
tenant; therefore, he could not be assured that his host would
respect his privacy. Berryhill’s expectation of privacy was
not reasonable.
For the foregoing reasons, the order of the district court is
AFFIRMED.

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