United States v. Bushay (859 F. Supp. 2d 1335, 2012)

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

This matter is before the Court on Defendant Jerome Bushay’s objections [489] to Magistrate Judge Baverman’s Report and Recommendation (the “R & R”) [476], which recommends that the Court deny Bushay’s motion to suppress statements [155]; motion to suppress evidence [156]; motion to suppress search and seizure re: 6746 Grey Rock Way [279 & 327]; motion to suppress search and seizure re: 943 Peachtree Apt. 707 [278 & 326]; and motion to suppress search and seizure re: hotel room [280]. The R & R further recommends that Bushay’s motion to suppress search and seizure re: traffic stop [282] be granted as moot and defers his motion to sever defendant re: Bruton problem [283] to this Court for determination.

I. Background

On December 14, 2010, the grand jury returned an indictment against Bushay and his eo-Defendants Otis Henry, Christopher Dixon, Mark Tomlinson, Rashaun Hood, Curtis Hernandez, Nigel Edwards, Jermaine Campbell, Ricardo Duncan, Dave Grant, Christopher Williams, Damien Aarons and Conrad Harvey. The indictment charges all Defendants as part of a conspiracy to commit drug-related offenses and charges them with the underlying substantive offenses of the conspiracy, which include two counts of possession with the intent to distribute marijuana, three counts of possession with the intent to distribute methylenedioxymethamphetamine (MDMA), and two counts of possession of a firearm in furtherance of a drug trafficking crime.

Bushay filed the motions currently before the Court seeking to suppress the seizure of a firearm from a hotel room in Tampa, Florida; his statements made to police following his arrest in Florida; evidence gained through the searches of two residences in Georgia; and evidence gained through a traffic stop. Additionally, Bushay seeks a severance pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), from any of his co-Defendants who made statements implicating him.

On September 22, 2011, Magistrate Judge Baverman held an evidentiary hearing on Bushay’s motions to suppress evidence from the search of the Tampa hotel room and his post-arrest statements.

On February 7, 2012, Judge Baverman issued an R & R setting forth his findings of fact from the evidentiary hearing and recommending that all of Bushay’s motions to suppress, except his motion to suppress evidence from an October 4, 2010 traffic stop in Lamar County, Georgia, be denied. As to the traffic stop, Judge Baverman recommended that this motion be granted as moot because the Government announced at the evidentiary hearing that it did not intend to' introduce any evidence from the traffic stop at trial. Bushay timely filed objections to the R & R challenging Judge Baverman’s findings of fact and conclusions of law made in response to his motions to suppress.

II. Analysis

A. Legal Standard

A district judge has a duty to conduct a “careful and complete” review of a magistrate judge’s R & R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir.1982)). This review may take different forms, however, depending on whether there are objections to the R & R. The district judge must “make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R & R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006).

“Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court.” Nettles, 677 F.2d at 410 n. 8. “This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act.” Id. at 410.

The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.2009). Indeed, a contrary rule “would effectively nullify the magistrate judge’s consideration of the matter and would not help to relieve the workload of the district court.” Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir.2000)).

After conducting a complete and careful review of the R & R, the district judge may accept, reject or modify the magistrate judge’s findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).

The Court has conducted a careful, de novo review of the report and recommendation and Bushay’s objections thereto. Having done so, the Court finds that Magistrate Judge Baverman’s factual and legal conclusions were correct and that Bushay’s objections have no merit.

B. The Tampa Hotel Search, the Agents’ Seizure of the Gun, and Bushay’s Post-Arrest Statements 1. Judge Baverman’s Findings of Fact

Based on the evidence presented by the parties at the September 22 hearing, Judge Baverman made the following findings of fact regarding the search of the Tampa hotel room, the seizure of a gun from that room, and Bushay’s post-arrest statements to police.

On December 15, 2010, Drug Enforcement Administration (“DEA”) Atlanta Task Force Officer (“TFO”) T.K. Gordon called TFO Jeff McConaughey of the Pinellas County, Florida Sheriffs Office to advise him that several individuals who had been indicted in Atlanta, and for whom arrest warrants had been issued, were in the Tampa area. At the time of the call, McConaughey had been conducting an investigation of one of Bushay’s co-Defendants, Christopher Williams. McConaughey assembled a team of DEA agents and TFOs and went to an area northeast of Tampa near the fairgrounds, where there are several hotels. The agents did not know which hotel the individuals were staying in, but had learned through Title III wire intercepts that the subjects were in room 308 of one of the hotels in that area. Agents then observed Bushay and Williams leaving the Fairfield Inn in a van and followed them to an IHOP restaurant near downtown Tampa.

Agents continued to surveille the suspects while they were inside the IHOP. When the men went to leave the restaurant, agents arrested them. In searching Bushay, McConaughey found two plastic credit-card-type hotel room keys. Agents placed Bushay in the back of a marked police car, but did not advise him of his Miranda rights at that time because they did not intend to question him at the scene.

Once at the DEA office, McConaughey took Bushay to the processing and interview room. At that time, McConaughey was not armed. McConaughey did not threaten Bushay or make him any promises. McConaughey read Bushay his rights from a DEA Form 13A, T21, which provides,

Before we ask you any questions, you must understand that you have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand? Are you willing to answer some questions?

Bushay replied, ‘Yes, I’ll talk to you.” McConaughey did not present Bushay with a written waiver form. McConaughey began questioning Bushay and asked him whether he had left any property at the hotel. Bushay responded that he had left a gun in the hotel nightstand.

DEA Task Force Agents Nicholas Marolda and Dexter McGee went to the Fair-field Inn with the plastic keys that agent McConaughey had found on Bushay in order to retrieve the gun. They knocked on the door of room 308, and after a few seconds Keisean Scarlett opened the door. When Marolda identified himself as a law-enforcement agent, Scarlett tried to shut the door; however, Marolda stuck his foot in the door. Scarlett turned around and moved towards the bed. The agents drew their weapons but did not enter the room. Instead, they verbally commanded Scarlett to return to the door while showing his hands and then to get on the floor. Scarlett complied, and the agents handcuffed him.

Scarlett told the agents, and they observed, that another person, subsequently identified as Chadwick Williams, was in the room sleeping. The agents told Williams to show his hands, and after several requests he complied and the agents secured him. The agents then placed Scarlett and Williams in the hallway inside the hotel room and conducted a sweep of the room for the presence of any other persons.

After sweeping the room, the agents brought Scarlett and Williams back into the room and seated one on a chair and the other on a bed. Marolda explained that the agents were there to search the room for a firearm. Marolda asked Scarlett if there was a gun in the room, and he replied that it was in the nightstand between the beds. Scarlett told Marolda that he was going to call “Jerome” to ask why he left the gun in the room. Marolda seized the firearm from the nightstand, and gave it to McGee, who cleared it and secured it.

At approximately 12:35 p.m., Scarlett and Williams signed a consent-to-search form for the room, but Marolda could not say whether the form was signed before or after the firearm was seized. He also testified that he “had consent to search the room — verbal consent to search the room and then we had written — and then we received written consent as well.”

Meanwhile, back at the Tampa DEA office, Gordon called McConaughey on his cell phone around 1:17 p.m. McConaughey handed the phone to Bushay in order for Gordon to record a voice exemplar. Although McConaughey could not hear Gordon’s side of that conversation, Bushay did not invoke his right to an attorney while speaking with Gordon, nor did he invoke his right to remain silent. After Bushay spoke with Gordon, McConaughey began questioning Bushay about the Atlanta case, particularly whether Williams was involved in the Atlanta case with him. At that point, Bushay responded, “I better talk to an attorney first.” McConaughey did not question Bushay further.

2. Judge Baverman’s Conclusions of Law

In evaluating Bushay’s motions to suppress the search of the hotel room, the seizure of the gun, and Bushay’s post-arrest statements, the magistrate judge concluded the following.

First, Judge Baverman concluded that Bushay lacked standing to challenge the agents’ search of the hotel room because he did not establish that he had a subjective or objective expectation of privacy in the hotel room. As to Bushay’s subjective expectation of privacy, the magistrate judge concluded that Bushay did not show that he had an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee. Specifically, Bushay failed to establish that the room was rented in his name, that he paid for the room, or that he was the registered additional guest.

In reaching this conclusion, Judge Baverman found significant that Bushay described his presence in the area as having “met friends”; referred to “the” hotel room rather than “his” hotel room; never proved that the two plastic keys were in fact the keys to room 308; did not prove that the vehicle he was operating at the time of his arrest was a vehicle registered for room 308; was not using the hotel for lodging; and kept no personal items in the room other than the gun. Although Bush-ay argued that the fact that the agents believed that he was staying in the room helped prove his standing, Judge Baverman found this argument unpersuasive because a defendant may not establish standing by relying on the government’s theory of the case. Because he could not establish that the hotel room was his, nor could he establish that he was an overnight guest, Judge Baverman found that Bushay had not established that he had a subjective expectation of privacy. Further, he concluded that Bushay had also failed to establish an objective expectation of privacy in the hotel room because at most he was only a casual visitor.

Second, Judge Baverman considered whether Bushay had standing to challenge the agents’ seizure of the firearm even though he had no standing to challenge the agents’ search of the hotel room. He concluded that a defendant cannot assert standing to challenge a seizure based on a possessory interest in the item seized when has no expectation of privacy in the area searched. Further, he found that even if Bushay could establish standing on such a basis, he had failed to show that he had a possessory interest in the handgun sufficient to establish an expectation of privacy in the gun itself. He based this conclusion on his findings that Bushay left the gun unsecured in a hotel room in which he had no cognizable expectation of privacy; Bushay did not leave the gun in a personal belonging such as a coat or case; the gun was not registered in Bushay’s name; Bushay did not tell Scarlett that he left the gun in the nightstand; and Bushay did not prove that the keys removed from him at the time of the arrest were keys to room 308 and therefore had no way to retrieve the gun except through Scarlett.

Third, Judge Baverman addressed whether, in the event the Court were to find that Bushay does in fact have standing to challenge the agents’ warrantless search of the hotel room and the subsequent seizure of the gun, the search and seizure was proper. He concluded that the Government did not prove that Scarlett or Williams voluntarily consented to a search of the hotel room, either through oral or written consent. However, he concluded that the agents’ seizure of the gun was nevertheless reasonable under the exigent-circumstances exception to the warrant requirement. According to the magistrate judge, it would have been unreasonable for the agents to have simply left the firearm in the nightstand where it could pose significant danger to hotel employees or future guests of room 308. Thus, the gun presented a danger to the public that the agents were authorized to mitigate by seizing the weapon.

Fourth, the magistrate judge considered whether Bushay’s post-arrest statements were lawfully obtained, i.e., whether the Government proved that the agents satisfied the Miranda requirements and that Bushay’s statements were obtained freely and voluntarily. He found that McConaughey read Bushay his Miranda rights from a DEA Form 13A, so Bushay was made aware of his rights, and Bushay responded by saying that he was willing to talk with McConaughey. Furthermore, Bushay’s statements were voluntary because there was no evidence that McConaughey promised him any benefit or threatened him, the questioning was not prolonged, and the fact that Bushay exercised his right to stop answering questions during the interview demonstrated that he recognized that he had a choice not to answer any questions.

3. Standing

Bushay first objects to Judge Baverman’s conclusion that he lacked standing to challenge the search of the Tampa hotel room and the seizure of the firearm. He contends that he has demonstrated a subjective expectation of privacy in the premises because the evidence shows that he was staying in room 308 of the Fairfield Inn. Additionally, Bushay argues that contrary to the R & R’s conclusion, he has standing to challenge the agents’ seizure of the gun because the seizure infringed upon his possessory rights.

a. Bushay’s Expectation of Privacy in Room 308

Bushay objects to several of the R & R’s factual findings and legal conclusions regarding his subjective expectation of privacy in the hotel room. First, he argues that Judge Baverman incorrectly concluded that “while Bushay possessed two hotel room keys, he never proved that these keys in fact were the keys to room 308.” Bushay contends that the fact that the agents went immediately to room 308 of the Fairfield Inn and seized the firearm from inside the nightstand proves that the keys belonged to that room. The Court disagrees.

The facts show that upon searching Bushay the agents confiscated two plastic keys. They also knew from the Title III wire communication that he was staying in room 308 of a local hotel. Based on their surveillance, they believed that Bushay was staying at the Fairfield Inn. When Bushay was arrested, he had two plastic key cards in his sleeve. During his post-arrest questioning, he told the agents that he had left his gun in the nightstand of the hotel room. Thus, there was an inference that the plastic cards went with the hotel room. However, the agents never used the keys to enter the room. Instead, they knocked on the door and Scarlett opened it. Therefore, the fact that the agents went to the hotel room and seized the gun does not prove that the keys belonged to room 308. The Court agrees with the R & R that under the facts, Bushay failed to prove that the keys belonged to room 308.

Bushay next disagrees with the magistrate judge’s conclusion that he relied upon the Government’s theory of the case in proving his standing. He contends that he relied upon the direct and circumstantial evidence proved by the agents to meet his burden. In support of his contention, he points to McConaughey’s testimony that it was “implied” that the hotel room was Bushay’s. This testimony does not rebut the R & R’s conclusion. McConaughe/s testimony simply shows that the agents believed that the hotel room was Bushay’s. But as the R & R explained, Bushay cannot rely on the Government’s beliefs, i.e., its theory of the case to prove his standing because he ultimately carries the burden of proving his standing. See United States v. Singleton, 987 F.2d 1444, 1449 (9th Cir.1993); see also United States v. Ruth, 65 F.3d 599, 604-05 (7th Cir.1995) (defendant could not carry his burden “simply by relying on the facts cited in the Federal Affidavit for a search warrant and testimony by [a DEA agent] at one of the hearings on the motion to suppress”).

Bushay also contends that the magistrate judge erroneously concluded that he was merely a casual visitor who was briefly present with the consent of the room holder. He asserts that the evidence establishes that he was actually staying in room 308. In support of his argument, Bushay points to five facts: (1) he announced on the phone that the men were staying in room 308; (2) agents saw Bush-ay getting into his car in the parking lot of the hotel; (3) when arrested, he had two keys to room 308; (4) after his arrest, he informed agents that he had left his gun back at his hotel room in the nightstand; and (5) Scarlett informed agents that Bushay left his gun in the nightstand.

The Court does not find this argument persuasive. As explained above, Bushay never proved that the keys belonged to room 308. Additionally, neither the agents seeing Bushay get into his car outside the hotel room, Bushay informing the agents that his gun was back at the hotel room, nor Scarlett informing the agents that Bushay left his gun in the nightstand makes it more probable that the hotel room was Bushay’s as opposed to its being Scarlett’s and Bushay having simply been a' casual visitor who left his gun there.

The fact that on the phone call Bushay said that the men were staying in the room is more helpful to Bushay. However, Bushay did not show that he had an unrestricted right of occupancy or custody and control of the room as distinguished from occasional presence in the room as a mere guest or invitee. Afterall, Bushay had no personal belongings in the room other than the gun and did not stay in the room overnight. The magistrate judge correctly found that Bushay did not show that the room was rented in his name, that he paid for the room, that the van he was driving was' registered to the room, or that he was registered as an additional guest. Thus, the Court agrees with the magistrate judge’s conclusion that in light of the totality of the evidence presented, Bushay did not carry his burden of establishing that the room was his.

As to his objective expectation of privacy, Bushay contends that according to the Supreme Court’s holding in Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), he was a social guest with a reasonable expectation of privacy because there is no evidence that men were using the room predominantly to engage in narcotics trafficking. Bushay’s reliance on Carter is misplaced. There, the Court held that based on the “purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between [defendants] and the householder,” defendants did not have a subjective expectation of privacy. However, the absence of a purely business or illegal purpose does not compel the opposite conclusion, i.e., that the defendant does have standing.

As the Court explained in Carter, “an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.” Id. at 90, 119 S.Ct. 469. Thus, the Court must determine whether Bushay was an overnight guest or merely present in the room. The essence of this inquiry is whether the defendant has “demonstrate[d] a significant and current interest” in the property at the time it was searched. United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984). To have an expectation of privacy in a hotel room that he did not rent, Bushay must show “an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee.” United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir.1984). The Court agrees with Judge Baverman’s conclusion that Bushay has failed to make this showing. Instead, the facts show that he was not using the hotel for lodging, produced no evidence that he had personal belongings (other than the gun) in the room, and told McConaughey that he was at the hotel to meet friends.

Bushay also argues that he demonstrated an objective expectation of privacy by being the sole possessor of the room keys. As set forth above, Bushay has failed to prove that the keys belonged to room 308. Moreover, Bushay has not submitted any evidence demonstrating that there were only two keys to the room. Even if Bush-ay had proved that the two keys in his possession were the keys to room 308, since Scarlett and Williams were in the room when the agents arrived, it seems reasonable that the hotel could have issued more than two plastic keys to the room.

The Court will therefore adopt the R & R’s conclusion that Bushay did not have a subjective or objective expectation of privacy in the hotel room.

b. Bushay’s Possessory Rights in the Gun

Bushay also contends that, contrary to Judge Baverman’s conclusion, he established standing based upon his possession and property interests in the gun. In support of his argument, he relies on Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), for the proposition that a defendant need only establish that a seizure interfered with his possessory rights in order to challenge the seizure. The R & R considered Soldal’s application to the facts of this case and concluded,

Soldal is distinguishable because that case did not involve Fourth Amendment standing or an expectation of privacy at all, but rather discussed whether the plaintiffs could bring a 42 U.S.C. § 1983 action against local law enforcement for the claimed unlawful seizure of their mobile home even if their privacy was not infringed under the Fourth Amendment. Soldal, 506 U.S. at 72, 113 S.Ct. 538. While the Court there concluded that an improper seizure was actionable, that case did not address the question in the present ease: whether a defendant can assert an improper-seizure claim to property seized from a location in which he has no legitimate expectation of privacy; in Soldal, the plaintiffs were literally dispossessed from their property.

R & R at 26.

In Soldal, the Supreme Court described the issue before it as “whether the seizure and removal of the Soldáis’ trailer home implicated their Fourth Amendment rights.” 506 U.S. at 61, 113 S.Ct. 538. The Seventh Circuit had held that the Soldáis’ Fourth Amendment rights had not been violated because the officers who facilitated the removal of their mobile home had not violated the Soldáis’ privacy or liberty interests because they had not conducted a search. However, the Court explained that the Fourth Amendment “protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.” Id. at 63, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)).

The Court then looked to its decisions in Jacobsen and United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and explained that in those cases, because there was an invasion of the property owners’ possessory interests, i.e., a seizure, regardless of whether the owners’ privacy interests had been violated through a search, the issue was whether the seizures were reasonable under the Fourth Amendment. The Soldal Court made clear that “[although lacking a privacy component, the property rights in both [Jacobsen and Soldal] nonetheless were not disregarded, but rather were afforded Fourth Amendment protection.” 506 U.S. at 65, 113 S.Ct. 538. Thus, the Court in Soldal seemed to imply that a person may challenge a seizure of his property based on his property interest, even when he lacks a privacy interest.

However, as Judge Baverman noted, Soldal was not about a criminal defendant’s standing to challenge the seizure of personalty in a criminal proceeding. In fact, in considering the potential implications of its decision, the Court commented on how its holding might affect “routine repossessions, negligent actions of public employees that interfere with individuals’ right to enjoy their homes, and the like.” Id. at 71, 113 S.Ct. 538. Nowhere did the Court even mention the case’s effect on standing in criminal cases.

In his reasoning, Judge Baverman also noted that he “has not been directed to any cases, and has found none, where a court permitted someone like Bushay — at most a casual visitor — to invoke the Fourth Amendment to challenge the seizure of his own property when the visitor was not present at the time of the search and seizure.” Indeed, such cases are extremely limited, but this Court has found two on point.

First, in 1975, when Justice Stevens was a Circuit Judge for the Seventh Circuit, he wrote the opinion in United States v. Lisk, 522 F.2d 228 (7th Cir.1975), which considered whether a defendant could establish standing to challenge a seizure based solely on his property interest in a bomb. The defendant had stored a bomb in the trunk of a Mend’s car, and police searched the car and seized the bomb. The defendant was not in the car at the time of the seizure. Thus, like Bushay, the defendant had no expectation of privacy in the area searched and was not present for the search. The court held that the defendant clearly lacked standing to object to the search of the car because he had no expectation of privacy in the third party’s car. In determining whether the defendant had standing to challenge the seizure, the court began its analysis by noting, “Although the issue seems simple and clear-cut, and certainly the problem must be one that frequently arises, we have been surprised to find no authority directly on point.” Id. at 230. The court then explained, “There is a difference between a search and a seizure. A search involves'an invasion of privacy; a seizure is a taking of property. The owner of a chattel which has been seized certainly has standing to seek its return.” Id. Setting forth little other reasoning for its decision, the court held that based on the defendant’s property interest in the bomb, the defendant had standing to object to the seizure.

In a footnote in United States v. Salvucci, 448 U.S. 83, 91 n. 6, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Supreme Court seemingly endorsed the Seventh Circuit’s holding in Lisk when citing to it for the proposition that “[ljegal possession of the seized good may be sufficient in some circumstances to entitle a defendant to seek the return of the seized property if the seizure, as opposed to the search, was illegal.” But, importantly, the Court did not say that a defendant’s legal possession of an item would be sufficient to confer standing upon him to seek suppression of the seized good in a legal proceeding against him — only that it would entitle him to seek the return of his seized property. The Court did not explore the issue in depth because the defendants did not challenge the constitutionality of the seizure, only the search.

The second case concluding that a criminal defendant has standing to contest a seizure based on his property interest in the item seized is the District of Massachusetts’s decision in United States v. Battle, 400 F.Supp.2d 355 (D.Mass.2005). In Battle, the defendant contested the seizure of a handgun and ammunition from a bureau drawer in a third party’s apartment. The court found that the defendant did not have standing to challenge the search because he had no expectation of privacy in the third party’s home, but that under Lisk and Salvucci he was not foreclosed from challenging the seizure of the handgun and ammunition. However, after conducting this in-depth analysis, the court noted that the defendant had not actually challenged the seizure, only the search; thus, its analysis is dicta.

Because Battle is dicta, in thirty-five years only one case — Lisk—has adopted the proposition Bushay maintains: that a criminal defendant has standing to challenge the seizure of a chattel based solely on his property interests therein. In the face of such scant authority, the Court refuses to recognize such broad standing rights. The Court will therefore adopt Judge Baverman’s conclusion of law that Bushay cannot establish standing to challenge the seizure of the gun based on his alleged property right in the gun.

Additionally, the Court will adopt Judge Baverman’s conclusion that even if Bushay had standing to assert that evidence of the seizure should be suppressed based on his property or possessory interest in the gun, Bushay has not established any such interest. As the magistrate judge concluded, Bushay was not in possession of the gun when the agents seized it, he had left the gun in a hotel room in which he had no expectation of privacy, and the gun was not registered to him. Thus, Bushay did not show that he had any interest in the gun, possessory or otherwise.

4. Seizure of the Gun

Bushay agrees with Judge Baverman’s conclusion that the agents did not gain Scarlett’s or Williams’s consent before searching the room. However, he objects to the magistrate judge’s conclusion that the warrantless search was nonetheless proper under the exigent-circumstances exception to the warrant requirement. Bushay contends that because he was in custody miles away from the hotel, Scarlett and Williams were not convicted felons, and there was no evidence that the gun was the evidence of a crime or shooting, no exigent circumstances existed.

This objection is meritless. Based on the danger that the gun presented to the public, the agents reasonably seized it from the hotel room. The Court will therefore adopt the magistrate’s conclusion that the seizure of the gun was reasonable.

5. Bushay’s Post-Arrest Statements

Bushay also objects to Judge Baverman’s conclusion that Bushay’s statements complied with Miranda and were voluntary. He argues that the agents failed to obtain a written waiver and that under the “traumatic” circumstances of his arrest and detention, his statements were not voluntary.

First, the agents’ failure to obtain Bushay’s written waiver is not determinative of whether Bushay effectively waived his Miranda rights. The government “does not need to show that a waiver of Miranda rights was express,” and an “implicit waiver” of Miranda rights is sufficient. Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010); Hall v. Thomas, 611 F.3d 1259, 1285 (11th Cir.2010). Indeed, the Eleventh Circuit has held that a defendant may impliedly waive his Miranda rights by voluntarily making statements, even when he has explicitly refused to sign a written waiver. United States v. Dowd, 451 F.3d 1244, 1250-51 (11th Cir.2006) (where defendant “continued talking immediately after declining to sign the waiver” and “did not suggest even equivocally that he wished to cease questioning,” he impliedly waived his Miranda rights, notwithstanding his failure to sign the waiver form).

As Judge Baverman explained, an accused effectively waives his Miranda rights if he (1) voluntarily relinquishes them as the product of a free and deliberate choice, rather than through intimidation, coercion, or deception; and (2) makes his decision with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. United States v. Wright, 300 Fed.Appx. 627, 630 (11th Cir.2008) (citing United States v. Barbour, 70 F.3d 580, 585 (11th Cir.1995)). A waiver is effective where the totality of the circumstances reveal both an uncoerced choice and the requisite level of comprehension. Id.

Here, McConaughey read Bushay his Miranda rights from a DEA Form 13A, thus making him aware of his rights. And when McConaughey asked Bushay whether he was willing to answer questions, Bushay said that he was willing to talk. McConaughey did not promise Bushay any benefit or threaten him in any manner, and the questioning was not prolonged.

Nonetheless, Bushay contends that his waiver was not voluntary. He claims that “like an arrest scene out of so many movies, he was stormed by ten to fifteen armed agents who had their guns drawn, their badges flashing and their raid gear on display.” According to Bushay, he was then “dragged from the driver’s seat and thrown to the ground face-first,” handcuffed, “and then whisked away to an unfamiliar place, the bowels of a DEA office” where agents questioned him in a twelve-by-twelve-foot interrogation room. Bush-ay insists that the “average person would be traumatized by the arrest process to which [he] was subjected.”

Indeed, many people would likely find being arrested to be a traumatic event, and any arrest involves a certain degree of duress. But the issue is not whether the “average person” would be “traumatized” by the arrest process to which a defendant is subjected. Instead, the Court must consider whether the defendant voluntarily relinquished his right by making a free and deliberate choice, i.e., a choice that was not the product of intimidation, coercion or deception. As set forth in the R & R, sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession. See Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir.1988); United States v. Castaneda-Castaneda, 729 F.2d 1360, 1362-63 (11th Cir.1984). Although the agents used physical force to secure Bushay’s arrest, they did not use force after Bushay was restrained. Once inside the interrogation room, the agents did not subject Bushay to a long interrogation, apply any physical force, or make any promises. Thus, despite Bushay’s dramatic characterization of his arrest and questioning, the Court agrees with Magistrate Judge Baverman that the agents did not coerce, deceive or intimidate Bushay into waiving his rights.

The Court will therefore adopt the R & R’s recommendation to deny Bushay’s motion to suppress his post-arrest statements.

C. The Searches of 943 Peachtree, Apt. 707 and 6746 Grey Rock Way

Finally, Bushay objects to Judge Baverman’s conclusion that Bushay’s motion to suppress evidence seized as the result of two federal search warrants for 943 Peach-tree, Apt. 707 and 6746 Grey Rock Way. In his objections, Bushay states that he “reiterates” that “probable cause was lacking on the face of the warrant affidavits, and the information in the affidavits [supporting the warrant applications] was stale.” This reiteration basically mirrors the arguments he raised in his supplemental motions to suppress these searches [326 & 327]. Because Judge Baverman addressed each of Bushay’s arguments in the R & R, and the Court agrees with the R & R’s thorough reasoning and conclusions, the Court sees no need to provide additional analysis on this issue.

III. Conclusion

The Court has also reviewed those sections of the R & R to which Bushay did not object and finds no clear error.

Accordingly, the Court ADOPTS AS ITS ORDER the Report and Recommendation. The Court DENIES Bushay’s motion to suppress statements [155]; motion to suppress evidence [156]; motion to suppress search and seizure re: 6746 Grey Rock Way [279 & 327]; motion to suppress search and seizure re: 943 Peachtree Apt. 707 [278 & 326]; and motion to suppress search and seizure re: hotel room [280],

Bushay’s motion to suppress search and seizure re: traffic stop [282] is DENIED AS MOOT.

Additionally, Bushay is DIRECTED to supplement his motion to sever defendant re: Bruton problem [283] within twenty-one days from the issuance of this order. The Government will then have fourteen days to respond to his supplemented motion, and Bushay may then file a reply within fourteen days of the Government’s filing of its response brief. If Bushay does not file a supplemental brief within this period, the Court will deem the motion abandoned.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation (“R & R”) of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. CrR. 58.1(A)(3)(a), (b). Let the same be filed, and a copy of the R & R, together with a copy of this Order, shall be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections to the R & R within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and be served upon the opposing party. See United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir.1990). The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. Failure to object in accordance with this rule waives a party’s right to review. Fed.R.Crim.P. 59(b)(2).

Pursuant to 18 U.S.C. § 3161(h)(1)(H), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act (“the Act”), whether or not objections are actually filed. If objections to this R & R are filed, the Clerk is DIRECTED to EXCLUDE from the computation of time all time between the filing of the R & R and the submission of the R & R, along with any objections, responses, and replies thereto, to the District Judge. 18 U.S.C. § 3161(h)(1)(D), (H); Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Mers, 701 F.2d 1321, 1337 (11th Cir.1983). The Clerk is DIRECTED to submit the R & R with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this the 24th day of January, 2012.

UNITED STATES MAGISTRATE JUDGE’S ORDER AND FINAL REPORT AND RECOMMENDATION

Before the Court are the following pretrial motions filed by Defendant Jerome Bushay: (1) motion to suppress statements, [Doc. 155]; (2) motion to suppress evidence, [Doc. 156]; (3) first motion to suppress search and seizure re: 943 Peachtree, Apt. 707, [Doc. 278], supplemented by Document 326; (4) first motion to suppress search and seizure re: 6746 Grey Rock Way, [Doc. 279], supplemented by Document 327; (5) motion to suppress search and seizure re: hotel room, [Doc. 280]; (6) motion to suppress search and seizure re: traffic stop, [Doc. 282]; and (7) motion to sever defendant re: Bruton problem, [Doc. 283]. For the following reasons, the undersigned RECOMMENDS that the all of the suppression motions be DENIED except that it is RECOMMENDED that the motion to suppress search and seizure re: traffic stop, [Doc. 282], be GRANTED AS MOOT. Further, the severance motion, [Doc. 283], is DEFERRED to the District Court.

I. Motion to suppress statements, [Doc. 155]; motion to suppress evidence, [Doc. 156]; and motion to suppress search and seizure re: hotel room, [Doc. 280]:

These motions concern Bushay’s arrest on December 15, 2010, in Tampa, Florida, the search of a hotel room, and statements made by Bushay. The Court held an evidentiary hearing on the motions. [Doc. 449].

A. Facts

On the morning of December 15, 2010, Pinellas County Sheriffs Office Detective/DEA Task Force Officer (“TFO”) Jeff McConaughey was called by DEA Atlanta TFO T.K. Gordon, who advised that several individuals indicted in Atlanta, and for whom arrest warrants had issued, were in the Tampa area. Transcript (“T”) 11 [Doc. 449]. Gordon identified the subjects and told McConaughey where these individuals supposedly were located. Til, 30. At the time of Gordon’s call, McConaughey was independently conducting an investigation in Tampa of one of Bushay’s co-defendants, Christopher Williams. T31. McConaughey assembled a team of DEA agents and TFOs and went to an area northeast of Tampa near the fairgrounds, where there were several hotels. Tll-12. At first, the agents did not know the specific hotel where the subjects were staying, but they knew through Title III wire intercepts that the subjects were located in room 308 of one of the hotels in that area. T12, 31. Surveilling agents observed two subjects, identified as Bushay and Williams, leave the Fairfield Inn in a silver or light blue Honda van, and agents surveilled them to a IHOP restaurant closer to downtown Tampa. T12-13, 36. By this time, there were 10 to 15 DEA agents, TFOs, and Tampa Police officers in the law-enforcement team. T16.

McConaughey arrived at the IHOP at noon and saw Williams walking back towards the van. Agents already on the scene told McConaughey that the van’s other occupant (Bushay, in the driver’s seat) was still in the vehicle. T14, 34. As the Honda van was preparing to leave the parking lot, the takedown signal was given and McConaughey blocked the van with his vehicle. T14. With his gun drawn, McConaughey removed Bushay from the van, placed him in handcuffs and put him on the ground, and at the same time other agents descended on the van and arrested Williams. T15,16.

McConaughey was dressed in street clothes but was wearing a tactical vest clearly identifying him as a police officer, along with a gun belt and his badge. T1516. In searching Bushay, McConaughey found plastic credit-card type hotel room keys in a key sleeve. T 16. He told Bushay that there were warrants for his arrest, but did not tell him the nature of the charges. T17. Bushay was placed in the back of a marked police car. T17, 18. He was not given his Miranda rights at that time because there was no intention to question him at the scene. T17. McConaughey turned the plastic keys over to his group supervisor and then went to the DEA office. T18, 33. The entire episode at the IHOP lasted less than 10 minutes. T18. The agents did not linger at that location because it was lunchtime at the business. T18. The DEA office was a 5-minute drive from the IHOP. T18.

Once at the DEA office, McConaughey took Bushay to the processing and interview room., The room was 12 feet by 12 feet and contained a large desk with multiple chairs. T27. McConaughey was no longer armed, nor was he wearing his tactical vest. T27. McConaughey did not threaten Bushay nor make him any promises. T27. McConaughey read Bushay his rights from a DEA Form 13A, (Gov’t Exh. 7). T21. In response, Bushay replied, “Yes, I’ll talk to you.” T22. McConaughey did not present Bushay with a written waiver form. T41. McConaughey began by asking Bushay some basic questions about his presence in Florida, since McConaughey did not know much about the Atlanta investigation. Bushay told him about coming into town and staying at the hotel, followed by McConaughey asking whether Bushay had any property left at the hotel. T22. Bushay responded that he had left a gun in the hotel night stand. T22, 33. Other agents were sent to the hotel with the plastic keys to retrieve the gun. T24.

DEA Task Force Agents Nicholas Marolda and Dexter McGee went to the Fair-field Inn at about noon to seize the firearm left in room 308. T47, 48, 49. Marolda was dressed in plain clothes, with his firearm covered by his shirt but his badge displayed. T49. The agents expected the room to be empty. T48, 66. They contacted the hotel manager, told him they were going to be entering a room, and he accompanied them to the floor where room 308 was located, but stayed down the hall. T48, 67. The agents knocked on the door, and after 10 to 20 seconds, were surprised when Keisean Scarlett opened the door. T48-49, 68. Scarlett appeared as if he had just woken up. T49. Marolda identified himself as a law-enforcement agent. T49. Scarlett tried to shut the door, but Marolda stuck his foot in the door. T68. Scarlett turned around and moved towards the bed. T50. The agents drew their weapons. T51. Since Marolda assumed there was a firearm in the room, he did not enter the room, but rather verbally commanded Scarlett to return to the door while showing his hands and get on the floor. T50, 70. Scarlett complied and was handcuffed. T50, 70.

Scarlett told the agents, and they observed, that another person, subsequently identified as Chadwick Williams, was in the room sleeping. T49, 50, 70-71. He was told to show his hands, and after several requests, he complied and was secured. T49, 50, 71. Scarlett and Chadwick Williams were placed in the hallway inside the hotel room. T72. Securing both subjects took about 45 seconds. T72. The room was swept for the presence of any other persons. T72, 73.

After sweeping the room, the agents brought Scarlett and Williams back into the room. T73. One was seated on a chair and another was placed on a bed. T75. Marolda asked for their names and dates of birth. T72-73, 77. Marolda explained they were there to search the room for a firearm. T49.

Scarlett told Marolda that he had gotten into the room, took a shower and fell asleep, and that is why he was slow in answering the door. T54. Marolda asked him if there was a gun in the room, and he replied that it was in the night stand between the beds. T54. Marolda asked him if he knew the gun was there and if he touched it; Scarlett responded he knew it was there, he touched it and was going to call “Jerome” to ask why he left the gun in the room. T54, 76.

Marolda seized the firearm from the night stand, and gave it to McGee, who cleared it and secured it. T54, 76-77. A warrants-and-criminal-history check was run (to see if Scarlett or Williams were convicted felons), with negative results. T77, 78.

At approximately 12:35 p.m., Scarlett and Williams signed a consent-to-search form for the room, Gov’t Exh. 3; T52-53, but Marolda could not say whether the form was signed before or after the firearm was seized. T78. He also testified that he “had consent to search the room— verbal consent to search the room and then we had written — and then we received written consent as well.” T81; see also T83.

The questioning of Scarlett and Williams took approximately 30 minutes. T77. They were then uncuffed and walked downstairs to the manager’s office, where Scarlett and Williams were asked by the management to leave the hotel. T77.

Meanwhile, back at the DEA office, Gordon called McConaughey on his cell phone around 1:17 p.m. T24, 25, 41. McConaughey handed the phone to Bushay in order for Gordon to record a voice exemplar. T24-25. Although McConaughey could not hear Gordon’s side of that conversation, Bushay did not invoke his right to an attorney while speaking with Gordon, T28, nor did he invoke his right to remain silent. T29. After Bushay spoke with Gordon, McConaughey began questioning Bushay about the Atlanta case, particularly whether Williams was involved in the Atlanta case with him. T28, 44. At that point, Bushay responded that, “I better talk to an attorney first.” T28, 43; see also T45. McConaughey did not question Bushay further. T28.

B. Issues

The evidence at the hearing and the parties’ post-hearing briefs raise three issues to be decided: Bushay’s standing to challenge the search and seizure of the firearm from room 308 of the Fairfield Inn; if he has standing, whether the gun was properly seized; and whether his post-arrest statements were obtained in compliance with Miranda and were otherwise voluntary.

C. Discussion

1. Bushay’s Standing

a. Contentions of the Parties

Bushay argues that he has standing to challenge the search of the hotel room and the seizure of the firearm. [Doc. 461 at 7]. He contends that the record demonstrates that he had a privacy interest in the room as a social guest at room 308 of the Fair-field Inn, since (1) the wire intercept disclosed he was staying in room 308; (2) he was observed leaving from the Fairfield Inn; (3) he was found to be in possession of plastic room keys from the hotel (although he recognizes that possession of the keys alone does not establish standing); (4) the record contains no other evidence of keys to room 308, [id at 8]; (5) the hotel registry lists one guest in addition to Scarlett in the room, [id. at 8-9]; (6) there is no evidence in the record to suggest that Bushay’s presence in the hotel room was for an illegal purpose, and thus as a social guest, he had the same expectation of privacy as he would have in his own home, [id. at 9-10]; (7) his possession of two keys reflects the hotel management’s recognition that more than one person was staying in room 308, [id. at 10]; (8) the occupants of the room had not checked out, nor had they abandoned the room, [id.]; (9) McConaughey’s testimony that “[i]t was implied because [Bushay] said, T left a gun in the night stand,’ ” [id. at 11 (quoting T33) ], means that law enforcement thought it was his room; (10) he left an expensive item (the firearm) in the hotel room, which is an indicia of his expectation of privacy; and (11) the wire intercepts disclosed that Bushay had arrived late from Atlanta, was staying in room 308 and there is no evidence that he stayed anywhere else, [id. at 12],

Bushay also argues that he had a possessory interest in the firearm seized which, he contends, was interfered with even if he does not have a privacy interest in the placed searched. [Id. at 12].

In response, the government argues that Bushay has failed to allege sufficient facts to establish standing to challenge the search of room 308. It argues, based on the four-factor test set out in United States v. Carter, 854 F.2d 1102, 1105 (8th Cir.1988), which the government asserts was approved by the Eleventh Circuit in United States v. Cooper, 203 F.3d 1279 (11th Cir.2000), first, that Bushay was not in the room at the time of the search. It contends that there is no testimony that Bushay was ever inside the room, but only that he was in the parking lot of the hotel premises. [Doc. 465 at 8]. It further claims that Bushay never told McConaughey which room he was staying in, nor that he was “staying” in any hotel room, but rather that he left a firearm in the night stand of a hotel room, which McConaughey inferred was room 308 from the wiretap. [Id. at 8-9],

Next, the government contends that the evidence demonstrates that Bushay did not pay, check in, or register for the room. It asserts that the keys taken off Bushay were never described as fitting room 308. [Id. at 9]. The government then argues that there is no evidence that Bushay had any personal belongings in the hotel room, other than the firearm. As to the firearm, the government argues that Bushay is not entitled to the inference that he was a guest in the hotel room because the firearm was found there, contending that it is equally plausible that Bushay never entered the room and gave the gun to Scarlett for safekeeping. [Id. at 10]. It further argues that, because Scarlett and Chadwick Williams were in the room, Bushay had no ability to exclude others from it. [Id. at 11].

The government also argues that Bush-ay has failed to demonstrate that he fit within the definition of a “social guest” in the hotel room because he did not establish that he was a guest for personal, rather than commercial purposes, as required by Eleventh Circuit precedent. [M]. The government concedes that there is no evidence in the record that Bushay was using the hotel room for narcotics trafficking, but contends that the evidence makes it highly unlikely that Bushay, Scarlett, Chadwick Williams and Christopher Williams were staying in the hotel room for social reasons, and in any event there is no evidence that Bushay was ever in the room. [Id. at 11-12].

Fourth, the government argues that Bushay has not properly asserted a possessory interest in the firearm apart from a privacy interest in the hotel room, because while he knew of the gun’s location, he was not present when the firearm was seized, it was not registered in his name, and he lacked exclusive control over it. [Id. at 13-14],

In his reply, Bushay argues that his and Scarlett’s statements and the presence of the firearm clearly demonstrate that he was present in the room, contrary to the government’s contention. [Doc. 468 at 2]. He argues that Scarlett’s comments and call to him evidenced Bushay’s belief that the firearm would be safe in the room and that he had not abandoned it. He argues that placing the firearm in the night stand or some other private place in the room demonstrates his level of authority, access, and control. [Id. at 3]. He also argues that McConaughey did not ask him directly whether he was staying in room 308 because it was obvious that he was. [Id. at 4-5].

He next argues that the Cooper and Carter cases upon which the government relies actually support his arguments. He contends that Carter is distinguishable because none of that defendant’s personal belongings were left in the room, but in the present case, Bushay left an expensive firearm in the hotel room. As for the factors discussed in Carter, Bushay argues that he had been in the room and left property in the room; and while he concedes that the record does not reflect that he paid for the room, he contends that others could be excluded by his possession of the two room keys. [Id. at 7]. He further argues that a hotel guest that takes the keys with him demonstrates his intention to exclude others. [Id. at 8]. He then asks the Court to take notice of the intercepted calls, which demonstrate that the intercepting agents knew that. Bushay was in a hotel room numbered 308 but did not know the hotel in which the room was located, followed by Bushay being in possession of the keys upon his arrest, demonstrating dominion and control. [Id. at 8-9].

Bushay also distinguishes Cooper, where the registered guest had abandoned the room. In this case, Bushay argues, guests of the room were still sleeping inside the room. As to the government’s argument that Bushay was arrested far from the room, Bushay argues that there is nothing unusual about an out-of-town guest going out to eat at lunchtime, and to accept the government’s argument would be to find that a hotel guest cannot venture from his room. [Id. at 9-10]. He further contends that Cooper is different from this case because here there is no allegation that the hotel occupants used the room for unlawful purposes. [Id. at 10-11],

Finally, Bushay argues that contrary to the government’s argument that he did not demonstrate a possessory interest in the firearm, his and Scarlett’s statements and his placement of the firearm in the night stand establish his possessory interest. [Id. at 11-12],

b. Applicable Law

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. To challenge a seizure as violating the Fourth Amendment, a defendant must have “standing,” ie., a legitimate expectation of privacy in the premises. See United States v. Gonzalez, 940 F.2d 1413, 1420 n. 8 (11th Cir.1991); see also United States v. Epps, 613 F.3d 1093, 1097 (11th Cir.2010) (“ ‘[0]nly individuals who have a legitimate expectation of privacy in the area invaded may invoke the protections of the Fourth Amendment.’ ”) (quoting United States v. Lee, 586 F.3d 859, 864 (11th Cir.2009)). As a result, the Fourth Amendment protects an individual in those places where he can demonstrate a reasonable expectation of privacy against government intrusion. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Fourth Amendment rights are personal, and only individuals who actually enjoy the reasonable expectation of privacy may challenge the validity of a government search. Rakas v. Illinois, 439 U.S. 128, 133-34, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Cooper, 203 F.3d at 1284. The Fourth Amendment protects a person’s reasonable expectation of privacy in his hotel or motel room. Stoner v. California, 376 U.S. 483, 489-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.2008); Cooper, 203 F.3d at 1284; United States v. Bulman, 667 F.2d 1374, 1383-84 (11th Cir.1982).

An individual has standing to challenge a search if “(1) he has a subjective expectation of privacy, and (2) society is prepared to recognize that expectation as objectively reasonable.” United States v. Harris, 526 F.3d 1334, 1338 (11th Cir.2008). That is, a defendant must establish both a subjective and an objective expectation of privacy. United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir.2006); United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir.1995). The subjective prong is a factual inquiry, United States v. McKennon, 814 F.2d 1539, 1543 (11th Cir.1987); see also United States v. Jones, 184 Fed.Appx. 943, 947 (11th Cir.2006), and “requires that a person exhibit an actual expectation of privacy,” United States v. King, 509 F.3d 1338, 1341 (11th Cir.2007) (quoting Segura-Baltazar, 448 F.3d at 1286). The objective prong is a question of law, McKennon, 814 F.2d at 1543, and “requires that the privacy expectation be one that society is prepared to recognize as reasonable,” King, 509 F.3d 1338, 1341 (11th Cir.2007) (quoting Segura-Baltazar, 448 F.8d at 1286).

Courts assess on a case-by-case basis the standing of a particular person to challenge an intrusion by government officials into an area over which that person lacked primary control. Oliver v. United States, 466 U.S. 170, 191 n. 13, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). No one circumstance is dispositive in this inquiry. “While property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, property rights are neithe