the Deputies' arrival. Had Petitioner been successful in
convincing the jury that he did not reside with Dixon and that he was
merely a temporary visitor at her abode, he probably also would have been
able to convince the jury that he did not possess (either actually or
constructively) the firearm ammunition found in the house's bedroom.
Although Petitioner was ultimately unable to persuade the jury to
believe his defense, Quilling, 261 F.3d at 712-13, that does not mean
that his counsel was ineffective for presenting it to the jury. The
presentment of this defense also meant that Petitioner's counsel was
correct in his decision not to call Dixon as a witness.*fn7 Because
(according to him) he was merely a temporary visitor at Dixon's home,
Petitioner did not have any Fourth Amendment basis upon which to
challenge the search of Dixon's home even assuming, arguendo, that
Dixon did not give the Deputies consent to search the house.*fn8
"[I]n order to claim the protection of the Fourth Amendment, a
defendant must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is reasonable; .
. . the Fourth Amendment is a personal right that must be invoked by an
individual." Minnesota v. Carter, 525 U.S. 83, 88 (1998); see Rakas v.
Illinois, 439 U.S. 128, 143 (1978) (holding that the "capacity to claim
the protection of the Fourth Amendment depends . . . upon whether the
person who claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place."); see also Katz v. United
States, 389 U.S. 347, 351 (1967) (noting that "the Fourth Amendment
protects people, not places."). The Supreme Court has held that an
individual "who is merely present with the consent of the householder may
not" claim the protections of the Fourth Amendment. Carter, 525 U.S. at
90; see Terry v. Martin, 120 F.3d 661, 663-64 (7th Cir. 1997) (noting
that temporary visitors do not have Fourth Amendment "standing" to
challenge a search of a residence because they do not have a legitimate
expectation of privacy at the residence); see also United States v.
Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000) (holding that "[a]n
individual whose presence on another's premises is purely commercial in
nature . . . has no legitimate expectation of privacy in that
location."). Therefore, because Petitioner claimed to be merely present
in Dixon's home, he cannot claim the Fourth Amendment's protections
against unreasonable searches, and he cannot challenge the Deputies'
search of Dixon's home even assuming that she did not give them consent
to search it.
Ironically, had Petitioner admitted that 9 1/2 Cahokia Street was his
address or, at least, that he was a frequent overnight guest of Dixon's, as
the Deputies testified,*fn9
he would have had a Fourth Amendment basis to
challenge the search. The Supreme Court has opined that overnight
guests in a house have a legitimate expectation of privacy which the
Fourth Amendment protects:
To hold that an overnight guest has a legitimate
expectation of privacy in his host's home merely
recognizes the every day expectations of privacy that
we all share. Staying overnight in another's home is
a longstanding social custom that serves functions
recognized as valuable by society. We stay in others'
homes when we travel to a strange city for business or
pleasure, when we visit our parents, children, or more
distant relatives out of town, when we are in between
jobs or homes, or when we house- sit for a friend. .
From the overnight guest's perspective, he seeks
shelter in another's home precisely because it
provides him with privacy, a place where he and his
possessions will not be disturbed by anyone but his
host and those his host allows inside. We are at our
most vulnerable when we are asleep because we cannot
monitor our own safety or the security of our
belongings. It is for this reason that, although we
may spend all day in public places, when we cannot
sleep in our own home we seek out another private
place to sleep, whether it be a hotel room, or the
home of a friend.
Minnesota v. Olson, 495 U.S. 91, 98-99 (1990). Thus, "[a]lthough an
overnight guest may possess a legitimate expectation of privacy in a
residence being searched, a temporary visitor to a residence may claim no
such protection." United States v. Harris, 255 F.3d 288, 294-95 (6th
Cir. 2001); see United States v. Perez, 280 F.3d 318, 337 (3d Cir. 2002)
(holding that "[a]lthough overnight guests who are legitimately in a
third-party's apartment may have a reasonable expectation of privacy,
Appellants [who were in another's apartment to engage in drug-related
activities] do not qualify.").
However, even today, Petitioner claims in his affidavit that he was
merely "visiting" Dixon. Thus, it was not objectively unreasonable for
Petitioner's counsel not to file a motion to suppress based upon Dixon's
testimony, nor was it outside the bounds of professional judgment not to
tender her as a witness during the trial. In fact, to do so would have run
counter to the defense's theory of the case. Accordingly, the Court finds
that Petitioner did not receive ineffective assistance of counsel in
violation of his Sixth Amendment rights.
Finally, the Court notes that letting Petitioner's convictions and
sentence stand would not result in a fundamental miscarriage of justice.
Carrier, 477 U.S. at 495.
Ergo, Petitioner's petition pursuant to 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence is DENIED.