BY THE COURT
a defendant's standing to challenge a search is in
question, the burden falls on the defendant to show an
expectation of privacy in the property searched. Defendants
may testify at a suppression hearing to establish their
standing to challenge a search without jeopardizing their
defense at trial.
have standing to challenge a home search, a guest must show a
degree of acceptance into the household or an ongoing and
meaningful connection to the host's residence so that the
guest has a reasonable expectation of privacy in the
of the judgment of the Court of Appeals in an unpublished
opinion filed August 11, 2017.
from Barton District Court; Ron Svaty, judge.
Douglas A. Matthews, assistant county attorney, argued the
cause, and Amy J. Mellor, county attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellant.
E. Anderson II, of Anderson, Bristow, & Anderson Law
Office, of Ellinwood, argued the cause and was on the brief
enforcement officers searched Alexis Tracy's apartment
for Brandon Alvin Dannebohm but did not find him. Instead,
they found his safe, which contained 447.5 grams of
methamphetamine. Dannebohm moved to suppress this evidence.
But the State argued Dannebohm lacked standing to challenge
the search because the apartment was not his and he did not
district court at first agreed with the State, but upon
reconsideration, it found Dannebohm had standing and went on
to suppress the evidence. The State filed an interlocutory
appeal, and our Court of Appeals reversed, holding Dannebohm
lacked standing. We disagree. Dannebohm had a reasonable
expectation of privacy in Tracy's apartment at the time
of the search, so he has standing to challenge the search. We
thus reverse and remand this appeal to the Court of Appeals
so it can rule on the merits of the State's appeal.
and Procedural Background
23, 2015, officers Chance Bailey and Jacob Harlow of the
Ellinwood Police Department were searching for Dannebohm who
had an outstanding arrest warrant. That evening, law
enforcement received a tip that Dannebohm was at Tracy's
apartment in Ellinwood. In fact, Dannebohm had arrived at
Tracy's apartment that morning carrying a blue cooler as
Tracy was leaving to run errands.
was present at Tracy's apartment when the officers
arrived. Eventually, the apartment manager helped Officer
Harlow get in touch with Tracy over the phone. He told Tracy
they were looking for Dannebohm and believed he was inside
her apartment. Tracy-who was in Great Bend-said Dannebohm was
not there. She said she was driving home. Tracy did not
mention that Dannebohm was with her in the vehicle at the
time of the call. Afterwards, she dropped him off at her
mother's house and returned to Ellinwood.
she arrived, Tracy told the officers she was "pretty
sure" there was nobody in her apartment. Officer Harlow
testified that Tracy said Dannebohm had been there earlier
that day but "she didn't believe he was still
there." Officer Harlow still asked Tracy for her consent
to search the apartment for Dannebohm, and she assented.
Tracy remained outside with Officer Bailey while other
officers-along with a police dog-searched the apartment.
Dannebohm was not inside. But resting on a bed was "a
glass pipe with white and burnt residue." In the same
room was a black Sentry safe being used as a TV stand. Tracy
said the safe belonged to Dannebohm. Also in the room was the
same blue cooler Dannebohm carried into the house that
morning. Somewhere in the apartment the officers found a
duffel bag containing clothing that evidently belonged to
point, the dog alerted to the presence of drugs on the bed
near the pipe. It also detected the presence of drugs on the
safe. The officers seized the pipe and the safe but not the
duffle bag. Rather than trying to open the safe, they took it
to the police department where they placed it in an evidence
locker. After obtaining a warrant, the officers opened the
safe using the combination (which they already possessed
because they had dealt with the same safe in a prior case).
Inside was a warrant and bonding information for Dannebohm as
well as 447.5 grams of methamphetamine.
said Dannebohm brought the safe to her apartment sometime
before June 9, 2015. Before the search, she told the officers
that if there were drugs in the safe, they belonged to
Dannebohm and not her. Tracy stored no personal items in the
safe. When asked if she could access its contents, she
responded, "I'm pretty sure the PIN was written down
somewhere but, I mean, I never really got into it." She
said the safe was occasionally left open.
State charged Dannebohm with possession with intent to
distribute methamphetamine and no drug tax stamp. Before
trial, he moved to suppress the evidence because he believed
the search with the dog exceeded the scope of Tracy's
consent. But before the court considered the merits of
Dannebohm's claim, the State moved to dismiss his motion,
arguing he lacked standing to challenge the search because he
had no reasonable expectation of privacy in Tracy's
district court conducted a bifurcated evidentiary hearing on
the motion to dismiss. Tracy testified she had known
Dannebohm for about 10 years. She and Dannebohm had no
romantic relationship. Tracy thought of him as a brother.
That summer Dannebohm was at her apartment at least once a
day to check on her because she was pregnant. Tracy
considered Dannebohm a welcomed guest. When asked if
Dannebohm would ever stay the night, she answered,
"Maybe once or twice." Tracy let him keep some