Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS 7. INTRODUCTION AND PROCEDURAL BACKGROUND....................965 77. STANDARDS FOR SUMMARY JUDGMENT...............................967 777. FINDINGS OF FACT.....................................................968 A. Undisputed Facts.......................................................968 B. Disputed Facts.........................................................970 IV. LEGAL ANALYSIS.......................................................971 A Standing...............................................................971 1. Expectation of privacy...............................................972 2. Property interest.....................................................975 a. Abandonment.....................................................977 b. Abandonment of the property seized here...........................979 3. Summary On Standing..............................................979 B. Lack Of Harm.........................................................980 C. DePugh’s Substantive Claims............................................982 1. Fourth Amendment Requirements.....................................982 2. Validity of the warrant and “probable cause”..........................983 a. “Probable cause” and the First Amendment.........................984 b. Confidential informants and corroboration..........................984 c. Staleness.........................................................986 d. Probable cause in this case........................................987 3. Validity of the warrant and “particularity”............................989 A Misleading information..............................................991 5. Validity of a warrantless search and seizure ..........................992 a. Consent..........................................................992 b. Abandonment.....................................................994 c. Plain view .......................................................995 d. Duplication of a private search....................................997 D. Qualified Immunity....................................................998 a. Analysis of a qualified immunity defense...........................998 b. The test for qualified immunity on summary judgment .............999 c. Qualified immunity for an unconstitutional search or seizure........999 d. Qualified immunity here.........................................1000 V. CONCLUSION...........................................................1002 One of the hallmarks of our form of government is protection of personal privacy, particularly the sanctity of one’s home and personal effects, matters deeply respected by some societies since Roman times. Despite the fact that American colonists went to war against England in part because of the abuses of the right to personal privacy, that right was deeply respected in the law of England from which so many of our cherished principles have been adopted. For example, William Pitt, Earl of Chatham, in 1763 is said to have declaimed in the throes of a parliamentary debate on searches incident to the enforcement of an excise on cider, The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement! This case raises the question of whether the sheriff of Grundy County, Iowa, exceeded the authority which restrained the King of England in William Pitt’s time and, in the process, violated the Fourth Amendment of the United States Constitution, our own embodiment of the right to privacy in our homes and property. In this lawsuit brought pursuant to 42 U.S.C. § 1983, a pro se plaintiff seeks money damages against a county sheriff, in both his official and individual capacities, as the result of issuance of a search warrant and seizure of personal property allegedly in violation of plaintiff’s First Amendment rights to freedom of speech and expression, Fourth Amendment right to be free from unreasonable search and seizure, and Fourteenth Amendment right to due process. On cross-motions for summary judgment, plaintiff asserts that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. The defendant county sheriff argues that issues of fact preclude summary judgment in plaintiffs favor, but that on the undisputed facts he is entitled to summary judgment on a number of grounds. The sheriff argues plaintiffs lack of standing or damages, the validity of the warrant in question, or, if the warrant was invalid, the receipt of consent for the search, abandonment of the property seized, applicability of the “plain view” exception, and duplication of a private search, as well as qualified immunity, as establishing his entitlement to summary judgment. I. INTRODUCTION AND PROCEDURAL BACKGROUND On October 12, 1993, plaintiff Robert B. DePugh filed his complaint in this action pursuant to 42 U.S.C. § 1983 alleging ten causes of action for violation of his civil rights as the result of execution of a search warrant for his former residence in Reinbeck, Iowa, on October 22, 1991. Defendants were John L. McCarter, a magistrate of Iowa’s First Judicial District in Grundy County, Iowa, who issued the search warrant for DePugh’s former residence, Rick D. Penning, the Sheriff of Grundy County, who sought and executed the warrant, and Todd A. Geer, an Assistant Grundy County Attorney, who purportedly refused to return the property seized pursuant to the warrant. In his complaint, DePugh sought $10,000 in compensatory damages and $40,000 in punitive damages against each defendant. In addition, DePugh sought declaratory judgment to the effect that the conduct of the defendants violated various of his constitutional rights. In lieu of answering, on November 16, 1993, defendants Penning and Geer filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Following renewed service on all of the defendants, on May 17, 1994, defendant McCarter also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Defendants Penning and Geer then renewed their motion to dismiss on May 25, 1994. The court permitted limited discovery in light of the motions to dismiss. Although none of the defendants had yet answered the complaint in this matter, on November 3, 1994, plaintiff filed a motion for summary judgment, asserting that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. On January 10, 1995, this court granted the motion to dismiss of defendant McCarter, on the grounds of judicial immunity and lack of a “live” controversy for the purposes of declaratory judgement. The court also granted defendant Geer’s motion to dismiss, because the court concluded that DePugh had failed to state a claim that Geer violated his constitutional rights of access to the courts and due process: what the complaint alleges is that Geer identified for DePugh the appropriate process for vindication of those rights. However, the court concluded that DePugh had adequately pleaded claims against defendant Penning in his official and individual capacities. The court concluded that DePugh’s allegation that Penning, as the Sheriff of Grundy County “possessed final authority over the subject matter at issue and used that authority in an unconstitutional manner,” if proven, would be sufficient to establish official-capacity liability. Any claim for punitive damages against defendant Penning in his official capacity was stricken, however, because an official-capacity claim is in all but name a claim against the governmental entity, and such a governmental entity is immune from punitive damages under § 1983. DePugh has also stated a claim against Penning in his individual capacity because he alleged that Penning acted under color of law by committing constitutional violations under the authority of a warrant from an Iowa state court. The court reserved ruling on DePugh’s motion for summary judgment until such time as defendant Penning had answered the complaint and filed a response to the motion for summary judgment. This matter therefore has proceeded only upon claims for money damages against defendant Penning in his official and individual capacities. Penning answered the complaint on January 26, 1995, and on February 1, 1995, he resisted DePugh’s motion for summary judgment. Penning asserted as grounds for denial of DePugh’s motion for summary judgment that the warrant authorizing search of the premises in Reinbeck, Iowa, and seizure of DePugh’s property was supported by probable cause. On February 6, 1995, Penning filed his cross-motion for summary judgment. In that motion, Penning asserts that he is entitled to summary judgment on a number of grounds. First, Penning again argues that the warrant in question was supported by probable cause that the property to be seized had been obtained in violation of law, was illegal to possess, was possessed with intent to commit a public offense, or was evidence of a crime. Next, Penning argues that DePugh has no cause of action for damages, because he cannot establish actual damages from the conduct of which he complains. Third, Penning contends that DePugh does not have standing to complain of the search or seizure, because he had no privacy or ownership interest in the property searched or seized. Penning also argues that he is entitled to summary judgment even if the warrant in question was invalid, because no warrant was required. As grounds for this assertion, Penning argues that the property seized was abandoned and that he conducted the search pursuant to the consent of the bank that was seeking to recover the premises following default of the leaseholder. He also argues that the items seized were in plain view of an officer in the building by permission and the incriminating value of these items was immediately apparent. Penning also argues that the search and seizure were “duplicitous” of a prior private search, and that no damages resulted to DePugh from Penning’s conduct “following the private party search.” DePugh resists Penning’s motion for summary judgment on each and every ground. DePugh asserts that the warrant was not supported by probable cause, and that he has standing to complain of the seizure of his property whether or not he had a privacy or property interest in the place from which it was seized. He also argues that he need not show actual damages in order to pursue a cause of action for violation of his fundamental rights. DePugh responds to the arguments that no warrant was required for the search and seizure by vehemently denying that the property seized was abandoned; rather, DePugh presents evidence that it had been left in the care of a friend and business associate of many years, who was the leaseholder of the property searched. DePugh also asserts that the bank could not give or appear to give valid consent to any search, because it had no present possessory interest in the property searched and this situation was known to Penning. II. STANDARDS FOR SUMMARY JUDGMENT The Eighth Circuit Court of Appeals recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon ____ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing FedR.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Munz v. Michael, 28 F.3d 795, 796 (8th Cir.1994); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994); Johnson, v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993); Burk v. Beene, 948 F.2d 489, 492 (8th Cir.1991); Coday v. City of Springfield, 939 F.2d 666, 667 (8th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53); see also Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir. 1993). The moving party is not required by Rule 56 to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. “When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. The non-moving party is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Although “direct proof is not required to create a jury question, ... to avoid summary judgment, ‘the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.’ ” Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied sub nom. Metge v. Bankers Trust Co., 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994). In Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11, Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53, and Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). The trial court, therefore, must “assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial.” Hartnagel, 953 F.2d at 396 (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). If the nonmoving party fails to make a sufficient showing of an essential element of a claim with respect to which it has the burden of proof, then the moving party is “entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; Woodsmith, 904 F.2d at 1247. However, if the court can conclude that a reasonable trier of fact could return a verdict for the nonmovant, then summary judgment should not be granted. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burk, 948 F.2d at 492; Woodsmith, 904 F.2d at 1247. With these standards in mind, the court turns to consideration of the parties’ cross-motions for summary judgment. III. FINDINGS OF FACT A Undisputed Facts The record reveals that the following facts are undisputed. For some time prior to October 22,1991, when the search giving rise to plaintiff’s lawsuit occurred, DePugh had lived at a building in Reinbeck, Iowa, which served both as his place of business and residence. However, before the search occurred, DePugh had ceased living in the building in Reinbeck, although some of his personal property remained there. The budding was still in use as a place of business for a company operated by DePugh’s former business associate, David Powell. DePugh had no continuing interest in the property, although he was still serving as a consultant to Powell’s business and from time to time used the living quarters in the building during visits to Reinbeck. David Powell retained a leasehold on the property. Although at the time of the search, Penning asserts that the building’s owner, Lincoln Savings Bank of Reinbeck, considered Powell to be in default on the lease and was trying to recover the premises from him, Powell continued to occupy the building for approximately another ten months. On October 22,1991, Grundy County Sheriff Penning sought and obtained a search warrant for DePugh’s former residence. The application for the warrant was based almost exclusively on a tip from a confidential informant, now acknowledged to be an employee of Lincoln Savings Bank. The application for the warrant states that information from the confidential informant indicated the presence in the building of “Minute Men” literature and a box of photographic materials on top of which was a photograph of a juvenile female in a swimming suit. The search warrant authorized search for and seizure of a [sjtorage box approx 3 ft x 15 in containing ‘Minute Men’ literature and a box containing photographs of models, cassette tapes, film, and address book[.] Search Warrant, Appendix 1 to Complaint. The grounds for seizure of the material were that it was Property that has been obtained in violation of law. Property, the possession of which is illegal. Property used or possessed with the intent to be used as the means of committing a public offense or concealed to prevent an offense from being discovered. Property relevant and material as evidence in a criminal prosecution. Id. There is no clarification of any of these grounds for seizure nor any indication of any support for the conclusion that any of the property was obtained in violation of the law, was illegal to possess, could be used to commit a public offense, or was evidence of criminal activity. The search warrant is signed by magistrate McCarter. Id. The Inventory of Seized Property describes the following items as having been seized pursuant to the warrant: 1. Cardboard box w/film, video, pictures, address book 2. Plastic basket w/film and mise, papers/receipts 3. letter from Mrs. Hazel Dennison 4. cardboard box w/Minutemen literature Inventory of Seized Property, Appendix 2 to Complaint. The presumed owner of all of the items of property seized is identified in the inventory as Robert DePugh. Id. The seizing officer is identified as Rick Penning, and his signature appears on the inventory. Id. It is undisputed that items not identified in the warrant were also seized in the October 22, 1991, search. On February 20, 1992, DePugh was convicted on criminal charges unrelated to execution of this search warrant in the United States District Court for the Western Division of Missouri. At the time this complaint was filed DePugh was incarcerated at the Englewood Federal Corrections Institution in Littleton, Colorado. DePugh has since been released from custody. DePugh asserts that he learned of the search and seizure of his property from the building in Reinbeek, Iowa, only late in 1992 or early in 1993, while he was still incarcerated, during a telephone conversation with David Powell. DePugh states that Powell subsequently sent him copies of the search warrant and inventory, which he received on January 29, 1993. DePugh wrote to Sheriff Penning requesting return of the property and to magistrate McCarter requesting copies of any affidavit of probable cause on which the magistrate had relied in issuing the warrant, but received no answer. Next, DePugh wrote Assistant County Attorney Geer requesting return of his property and copies of materials in support of the application for the search warrant. In reply, DePugh received a letter dated March 5, 1993, which advised him that he could receive back “any property ceased [sic] which you can show belongs to you and which has now [sic] evidentiary value in any pending or potential legal proceedings.” The letter from Geer further advised DePugh to “file an application for return of property and documents, which application will be set for hearing.” Appendix 3 to Complaint. DePugh never made such an application. The property seized remains in the possession of Iowa law enforcement officials. B. Disputed Facts The parties have each advanced a number of disputes of fact they argue are sufficiently material to require denial of their opponent’s motion for summary judgment, but no impediment to the grant of their own motion for summary judgment. Penning denies that David Powell had a possessory interest in the building searched or that he was in compliance with his lease for the building at the time of the search. However, the record shows that Powell continued to occupy the premises for some ten months after the search and seizure in question here. Penning asserts that Lincoln Savings Bank, as the owner of the building, had the sole possessory interest at the time of the search. However, Penning’s affidavit in support of probable cause for the warrant demonstrates that he knew that the bank was only in the process of evicting Powell. Although Penning indicated in the seizure inventory that the presumptive owner of the property seized was DePugh, Penning now asserts that the property seized was abandoned in the building prior to the search. Penning also asserts that he made no determination that the items sought pursuant to the warrant were contraband, but that it was instead the confidential informant who determined that the items were contraband. DePugh asserts that he has never provided a complete inventory of his personal property left in the building in Reinbeek, Iowa, which could establish that certain items seized but not listed in his inventory were abandoned. Rather, he asserts that any incompleteness of his inventory of items left in the building is the result of faulty memory, not an intention to abandon anything. DePugh vehemently denies the suggestion that anyone but Powell had any authority over the building searched at the time of the search, and further denies that Lincoln Savings Bank was in the process of evicting Powell at the time of the search. DePugh asserts that he retained a privacy interest in the building searched, because he remained a consultant for Powell’s business and from time to time used the living quarters of the building in Reinbeek, Iowa. The court finds that Lincoln Savings Bank had no present possessory interest in the premises at the time of the search, because the bank had only begun, not concluded, eviction proceedings against Powell and Powell in fact occupied the premises for another ten months. The court finds further that there is no genuine issue of material fact that the property seized was not abandoned, nor was it contraband, issues which will be discussed more fully below, beginning at page 34, and page 51, respectively. DePugh disputes the assertion that John Stull observed most of the items ultimately seized on the ground that all of the evidence indicates that Stull made only a superficial observation about the contents of certain boxes by looking at the top items in those boxes. DePugh also contends that there is no evidence that John Stull or any bank official was qualified to determine that anything in the building searched or that any of the property seized was contraband. DePugh also denies that all of the items seized were in plain view or that they were of obvious value as evidence of criminal conduct. DePugh makes a number of other assertions as disputes of fact that this court deems to be disagreements with the legal inferences Penning seeks to draw from the facts. The court will not discuss those purported disputes of fact here. However, the court finds that there is a dispute concerning who exactly was the confidential informant in this case and whether that confidential informant actually had been in the building prior to Penning’s search. Although the warrant application indicates that the confidential informant “was in Interstate Foods last week and observed two boxes that C/I determined to be contraband,” the record suggests that the confidential informant was not actually the person who had been in the building or made any of the observations relied on in the application for the warrant. A letter from Penning to his attorney, provided as an exhibit by DePugh in support of his resistance to Penning’s cross-motion for summary judgment, states that Penning was contacted by Gerald Monk, an attorney for Lincoln Savings Bank, who stated that a bank official, John Stull, had been in the budding in question and had made the observations used in the warrant application. Penning has also stated in his response to DePugh’s statement of undisputed facts that he does not recall whether or not he contacted Stull directly prior to applying for the warrant. There is therefore a dispute of fact as to the identity of the confidential informant, either as John Stull or as Gerald Monk, and the extent of that confidential informant’s first-hand knowledge of items in the building searched. The court will consider in the pertinent place whether this dispute, or any of the other disputes of fact pressed by the parties, creates a genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. at 1355-56; Hartnagel, 953 F.2d at 396. IV. LEGAL ANALYSIS (Including Some Further Findings Of Fact) Each of the parties has advanced a number of grounds either for granting his own motion for summary judgment or for denying his opponent’s motion. The court feels compelled to consider each of these arguments, but will do so in the fashion the court deems best suited to a logical disposition of this matter, not necessarily in the order in which the parties have presented their respective cases. For example, the court concludes that treating separately the cross-motions for summary judgment, which are necessarily founded on similar bodies of fact and interwoven legal arguments, would be inefficient and artificial. The court will therefore consider first Penning’s arguments that DePugh’s claims are flawed ab initio, for lack of standing and insufficient allegations of damages, before turning to other arguments advanced by the parties. A, Standing Penning argues that DePugh does not have standing to complain about the search or seizure in question here, because he had no privacy interest in the area searched or the items seized. Penning states that although DePugh asserts a subjective expectation of privacy, there is nothing in the record that makes such an expectation of privacy objectively reasonable. Penning points to the fact that, under the lease between Lincoln Savings Bank and David Powell, DePugh has no interest in or authority over the premises searched. Penning also asserts that the items seized were simply abandoned by DePugh, because he had no control over them and historically had ceased using them. DePugh counters that he had a property interest in the items seized that gives him standing to complain of the seizure. He argues that at no time did he abandon the items in the premises searched, but instead left them in care of a friend and business associate. The Eighth Circuit Court of Appeals recently listed the factors relevant to the determination of standing to assert a Fourth Amendment claim in United States v. Gomez, 16 F.3d 254 (8th Cir.1994). That list is as the follows: ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case. Gomez, 16 F.3d at 256 (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir.1991)). This court views the first two of these factors to emphasize property interests, while the last two emphasize privacy interests, and the middle two partake of both the property and privacy interests protected by the Fourth Amendment. See Soldal v. Cook County, — U.S. -, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (confirming that the Fourth Amendment protects property as well as privacy interests). Thus, this court will consider both DePugh’s privacy and property interests. 1. Expectation of privacy A person’s Fourth Amendment rights cannot be violated by a search unless the person has a legitimate expectation of privacy in the area or items searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place,” citing United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)); see United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994); United States v. Knoll, 16 F.3d 1313, 1321 (2d Cir.1994); Gomez, 16 F.3d at 256. It is clear that Fourth Amendment rights are personal and may not be vicariously asserted. See United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980) (a person’s “Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party,” with emphasis in the original, citing Rakas, 439 U.S. at 143, 99 S.Ct. at 430; Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123-24, 20 L.Ed.2d 1154 (1968)); Rakas, 439 U.S. at 148-49, 99 S.Ct. at 433; United States v. Jones, 16 F.3d 275, 279 (8th Cir. 1994) (conspirator had no legitimate expectation of privacy in the house of another co-conspirator); United States v. Gutberlet, 939 F.2d 643, 646 (8th Cir.1991) (same); United States v. Wright, 826 F.2d 938, 945 (10th Cir.1987) (“Indeed, it is not grounds for suppression [of evidence allegedly seized in violation of the Fourth Amendment] at all that the reasonable expectation of privacy of a third party was even flagrantly violated,” citing Payner, 447 U.S. 727, 100 S.Ct. 2439). Although an ownership or possessory interest in the premises is not necessarily required, the mere legitimate presence of the person on the searched premises by invitation or otherwise is not sufficient to create a protectable expectation of privacy. Rakas, 439 U.S. at 142-43, 99 S.Ct. at 429-30; United States v. Meyer, 656 F.2d 979, 981 (5th Cir.1981), cert. denied, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (1983). Rather, in order to show a legitimate expectation of privacy, the person challenging the search must show that [he or she] had a subjective expectation of privacy in the searched premises or items and that the expectation of privacy is one that society is willing to accept. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); United States v. Ford, 34 F.3d 992, 995 (11th Cir.1994); Stallings, 28 F.3d at 60; Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir.1994); United States v. Kiser, 948 F.2d 418, 423 (8th Cir.1991), cert. denied, 503 U.S. 983, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992); United States v. Monie, 907 F.2d 793, 794 (8th Cir.1990); United States v. Chuang, 897 F.2d 646, 649 (2d Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Thus, in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Supreme Court held that “status as an overnight guest is alone enough to show that [the claimant] had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Olson, 495 U.S. at 96-97, 110 S.Ct. at 1688. A casual visitor has a lesser expectation of privacy, but may also challenge a search if his own property is seized. Rakas, 439 U.S. at 142 n. 11, 99 S.Ct. at 430 n. 11. The threshold issue, on which DePugh bears the burden, is whether he had a subjective expectation of privacy in the premises or items searched here. See Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1; Stallings, 28 F.3d at 60; United States v. Macklin, 902 F.2d 1320, 1330 (8th Cir.1990); United States v. Fahnbulleh, 748 F.2d 473, 477 (8th Cir.1984), cert. denied, 471 U.S. 1139, 105 S.Ct. 2685, 86 L.Ed.2d 702 (1985). Even where the person claiming violation of the right has a subjective expectation of privacy, however, that expectation must be objectively reasonable. See Zimmerman, 25 F.3d at 787 (squatters and guest of squatters had no objectively reasonable expectation of privacy, because none of them had a legal right to occupy the land and build structures on it); and compare United States v. Wilson, 36 F.3d 1298, 1303 (5th Cir.1994) (person retained subjective and reasonable expectation of privacy in checkbook found in trash can in friend’s residence; because the person was an overnight guest of the resident, he could also claim standing under Olson, 495 U.S. 91, 110 S.Ct. 1684). The Supreme Court has held that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U.S. at 351, 88 S.Ct. at 511; see also Stallings, 28 F.3d at 61 (quoting Katz). Thus, “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S.Ct. 1735, 1738, 80 L.Ed.2d 214 (1984). Whether a party has a legitimate expectation of privacy therefore depends on several factors. Courts have looked to whether the party had a possessory interest in the things seized or place searched, whether the party has the right to exclude others from that place, whether the party has exhibited a subjective expectation that the place would remain free from governmental intrusion, whether the party took normal precautions to maintain the party’s privacy, and whether the party was legitimately on the premises. See, e.g., Rawlings, 448 U.S. at 105, 100 S.Ct. at 2561 (Fourth Amendment protections apply when person claiming violation of the Amendment took “normal precautions to maintain his privacy”); United States v. Nabors, 761 F.2d 465, 469 (8th Cir.1985) (listing all of above factors and finding that a casual guest did not have a legitimate privacy interest at a host’s home); United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981) (finding that the defendant possessed a legitimate expectation of privacy in his parents’ home); see also Gomez, 16 F.3d at 256 (holding that defendant did not have a sufficient expectation of privacy in an automobile he was driving). A person seeking to challenge a search of a commercial premises has the burden of establishing a reasonable expectation of privacy in the premises. See Rakas, 439 U.S. at 130 n. 1, 99 S.Ct. at 424 n. 1; Gomez, 16 F.3d at 256; United States v. Acosta, 965 F.2d 1248, 1256 n. 9 (3d Cir.1992). Applying the factors identified, e.g., in Nabors to this case, it is apparent that DePugh had no possessory interest in the place searched. He no longer had a leasehold or other possessory interest in the property searched, and was not named as a tenant in the lease held by David Powell. He was at most a casual visitor to the premises. A person’s legitimate presence on the searched premises, however, without more, is insufficient to establish standing. See Rakas, 439 U.S. at 142-43, 99 S.Ct. at 429-30; United States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (only owners, lessees, and occupants who can demonstrate significant and current interest in the searched premises have an expectation of privacy sufficient to confer standing to object to search, citing United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984)); United States v. Antone, 753 F.2d 1301, 1306 (5th Cir.1985) (same). DePugh plainly had no right to exclude others from the place searched. Nabors, 761 F.2d at 469. However, DePugh may have exhibited a subjective expectation that the place would remain free from governmental intrusion by selecting it as a place in which his property could be safely kept. Id. DePugh did not pick a public area in which to dispose his property, or one open to public view, even though the place he selected was a business, and his choice was with the permission of the occupant. Id. It was not the business aspect of the location that was relevant to DePugh’s choice, but the control of the premises by a long-time friend and business associate. Thus, the fact that it was a business location of another is insufficient in these circumstances to remove his expectation of privacy. Cf. Dickens, 750 F.2d at 1254. However, DePugh’s expectation of privacy in the premises does not rise to the level reasonably enjoyed by an owner, overnight guest, or other person with some interest in occupancy. See Rakas, 439 U.S. at 142-43, 99 S.Ct. at 429-30; Ford, 34 F.3d at 995; Antone, 753 F.2d at 1306. On balance, the court concludes that DePugh had no legitimate expectation of privacy in the place searched. However, the court will also consider whether DePugh had a legitimate privacy interest in the items searched and seized. Rakas, 439 U.S. at 142-43, 99 S.Ct. at 429-30. The parties dispute whether DePugh had a possessory interest in those items, Nabors, 761 F.2d at 469, a matter to which the court will turn in some detail below. However, DePugh took normal precautions to maintain his privacy interest in the property by entrusting it to the care of a friend and business associate, rather than simply leaving it in an otherwise abandoned building. Id. By contrast, the complaining person in Stallings had left a tote-bag containing drugs in some brush in a neighbor’s field without obtaining permission to do so, and the Eighth Circuit Court of Appeals concluded that the person had no objectively reasonable expectation of privacy in the tote bag. Stallings, 28 F.3d at 61. Here, the property was left in a building leased by a friend and business associate with that friend’s permission and acceptance of responsibility for it. An expectation of privacy of property left in care of a friend is objectively reasonable, cf. Stallings, 28 F.3d at 61, and is certainly a normal precaution to maintain one’s privacy. Nabors, 761 F.2d at 469. To put it another way, DePugh did not knowingly expose these items to the public, but sought to preserve them as private. Katz, 389 U.S. at 351. Although the court concludes that DePugh had no legitimate expectation of privacy in the place searched, he had such an expectation as to the property seized. Yet the court will not rely on this conclusion alone, but will also turn its attention specifically to whether DePugh had a property interest in the items seized sufficient to provide standing for him to challenge their seizure under the Fourth Amendment. 2. Property interest Even had the court found DePugh had no privacy interest to protect, that would not end its inquiry. In Soldal v. Cook County, — U.S. -, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), the Supreme Court confirmed that the Fourth Amendment protects property as well as privacy interests. Soldal, — U.S. at -, 113 S.Ct. at 549; Hroch v. City of Omaha, 4 F.3d 693, 696 (8th Cir.1993). Courts often end their Fourth Amendment inquiry with consideration of the expectation of privacy in the place searched, because the person claiming violation of Fourth Amendment rights denies any property interest in the item seized, usually contraband. See, e.g., Gomez, 16 F.3d at 256 (claimant denied interest in cocaine found in car and court found no privacy interest in vehicle for which claimant was not the owner because claimant’s use upon the authority of the owner did not create an expectation of privacy); Sanchez, 943 F.2d at 114 (court found the defendant’s lack of authority from the owner of the car and his denial of an interest in the drugs contained in the care crucial to its determination that defendant lacked standing to assert Fourth Amendment claim). However, courts must determine whether a seizure of the property in question is reasonable as well as whether a search of the place where it was found is reasonable. Hroch, 4 F.3d at 697 (defendant’s seizure of plaintiffs property was reasonable in light of the “careful balancing of governmental and private interests” required by Soldal); see also Bonds v. Cox, 20 F.3d 697, 703 (6th Cir.1994) (considering expectation of privacy and property interests as separately establishing standing to assert violations of the Fourth Amendment, citing Soldal). In United States v. Padilla, — U.S. -, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993), the Supreme Court expressly identified the alternative nature of the interests sufficient to provide standing for a Fourth Amendment claim: The case is remanded so that the court may consider whether each respondent had either a property interest protected by the Fourth Amendment that was interfered with by the [government officials], or a reasonable expectation of privacy that was invaded by the search [of the property in question]. Padilla, — U.S. at -, 113 S.Ct. at 1939 (emphasis added) (citing cases establishing the alternative nature of these interests for the purposes of standing under the Fourth Amendment). In Soldal, the Court rejected interpretation of its precedents as suggesting that the Fourth Amendment is only marginally concerned with property rights. Soldal, - U.S. at -, 113 S.Ct. at 545. Rather, “the message of those cases is that property rights are' not the sole measure of Fourth Amendment violations.” Id. The Court was “unconvinced that any of the Court’s prior eases supports the view that the Fourth Amendment protects against unreasonable seizures of property only where privacy or liberty is also implicated.” Id. The Court reasoned further that its “plain view” cases made such a view untenable, because seizure of items in plain view is still subjected to rigorous Fourth Amendment standards to avoid “invasion of] the owner’s possessory interest.” Id. at -, 113 S.Ct. at 546 (citing Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990); Texas v. Brown, 460 U.S. 730, 739 (1983) (opinion of Rehnquist, J.)). The Court thus reiterated that the “central requirement” of the Fourth Amendment is “reasonableness” of the government’s intrusion upon the individual’s rights. Id. Similarly, in Bonds, the Sixth Circuit Court of Appeals found that a person asserting Fourth Amendment rights had no reasonable expectation of privacy in a house in which she allowed another to live, and therefore did not have standing to challenge the search of the house. Bonds, 20 F.3d at 701-02. Nonetheless, the court found that the same person had standing to challenge the seizure of her property from the house. Id. at 702. The court wrote [t]he Fourth Amendment protects against seizure of property even if it occurs in a context in which privacy or liberty interests are not implicated. Soldal, — U.S. at -, 113 S.Ct. at 545. Thus, our finding that Bonds had no reasonable expectation of privacy in the house at 4174 Dunn Avenue does not affect our conclusion that Bonds has standing to challenge the seizure of her property [resulting from damage to the house]. Bonds, 20 F.3d at 702. Thus, if DePugh has a possessory or property interest in the property seized, he has standing under the Fourth Amendment to complain about seizure of that property even if he has no standing to complain about the search of the premises from which the property was seized or to complain of the search or seizure of his items on privacy grounds. DePugh asserts that he has such a property or possessory interest, but Penning argues that the property seized was simply abandoned by DePugh. a. Abandonment A number of courts have held that an individual has no standing to complain about the search or seizure of property that he or she has voluntarily abandoned. See, e.g., United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir.1995) (citing Fifth Circuit cases to so hold); United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1384, 128 L.Ed.2d 59 (1994). Although the person asserting a Fourth Amendment right bears the burden of proving a legitimate expectation of privacy in the thing searched, the government bears the burden of proving that the person has abandoned the property in question. United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir.1994). The district court’s ruling as to abandonment is reviewed on a clearly erroneous standard. United States v. Thompkins, 998 F.2d 629, 632 (8th Cir.1993); United States v. Ruiz, 935 F.2d 982, 984 (8th Cir.1991). In Thompkins, the Eighth Circuit Court of Appeals considered what factors evidenced abandonment: In Ruiz, [935 F.2d at 984,] this Court heard an abandonment argument under similar facts. Upon arrival at a bus station, Ruiz had placed luggage containing drugs into the trunk of one car, then prepared to leave in another car. Police, who had been tipped as to Ruiz’ arrival, stopped both cars and began questioning the occupants. Ruiz denied ownership of the luggage, and the driver of the car containing the bags allowed the officers to search them. On appeal, this Court affirmed the magistrate’s ruling that Ruiz had voluntarily abandoned his privacy interest by denying ownership. The instant facts present even a more compelling argument for abandonment than those in Ruiz — because here Thompkins not only disclaimed ownership of the suitcase, but he then told officers to go ahead and search it. In Ruiz the defendant’s mere disclaimer, then remaining silent while he watched the search, was held to constitute abandonment as to him. Indeed, it is clear that Thompkins did everything in his power to distance himself from the suitcase at issue here — and there is no evidence whatsoever (nor even a claim by Thompkin) to contradict the government’s assertion that he had abandoned the suitcase at the time it was searched. Thompkins, 998 F.2d at 632. Thus, the inquiry in Thompkins focused on disclaimers of ownership as evidence of a voluntary abandonment of property seized by law enforcement officials. However, in Thompkins, the appellate court noted that the district court “did not reach any conclusions on the issues of illegal seizure, consent, or standing — but simply stated that the government had “absolutely no right to open [the suitcase].” Thompkins, 998 F.2d at 632. Although the appellate court concluded that the suitcase in question was abandoned, it did not then directly declare that the criminal defendant had no standing to challenge its seizure, relying instead on a conclusion that the seizure was proper. Id. at 932-33. Obviously, if the property in question is abandoned, its seizure is proper, and the question of standing to challenge the seizure is moot. Other circuit courts of appeals have formulated tests for abandonment in the specific context of determining the claimant’s standing to challenge seizure of the property under the Fourth Amendment. In determining whether there has been an abandonment, depriving the complaining party of standing to assert Fourth Amendment rights, the Eleventh Circuit Court of Appeals has focused on intent: [T]he “‘critical inquiry is “whether the person prejudiced by the search ... voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” ’ ” United States v. Winchester, 916 F.2d 601, 603 (11th Cir.1990) (quoting [United States v.] McKennon, 814 F.2d [1539,] 1546 [ (11th Cir.1987) ] (citation omitted)). Whether abandonment occurred is a question of intent which may be inferred from acts, words and “other objective facts.” United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir.), cert. denied, 459 U.S. 871, 103 S.Ct. 157, 74 L.Ed.2d 131 (1982). Ramos, 12 F.3d at 1022-23 (emphasis in original). In Ramos, the court held that a person who overstayed the termination of his lease by four hours on New Year’s Day had not thereby exhibited an intent to abandon a locked briefcase under his bed. Id. at 1024— 26 (also surveying other cases on abandonment from the Eleventh Circuit). By way of contrast, the Eleventh Circuit Court of Appeals discussed its decision in United States v. Lehder-Rivas, 955 F.2d 1510 (11th Cir.), cert. denied sub nom. Reed v. United States, — U.S. -, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992), in which it had held that a person who left a suitcase with a slight acquaintance, stating an intention to return for it within three months, but who did not retrieve it for more than a year before the acquaintance turned it over to the police, had abandoned the suitcase. Ramos, 12 F.3d at 1024 (citing Lehder-Rivas, 955 F.2d at 1522). The Fifth Circuit Court of Appeals has also focused on intent to abandon property, for example, distinguishing between an intent to abandon property shown by repeated disclaimers of knowledge and ownership, from refusal to identify property followed by grudging admission of control or ownership of property, held insufficient to constitute abandonment. United States v. Ponce, 8 F.3d 989, 994-95 & n. 4 (5th Cir.1993) (finding no abandonment in refusal to identify vehicle to police followed by admission that vehicle in question was complainant’s brother-in-law’s when police started the vehicle with keys found in complainant’s pocket, contrasting these circumstances with repeated disclaimers in United States v. Roman, 849 F.2d 920, 922 (5th Cir.1988)). In Quiroz-Hernandez, the same circuit court of appeals found abandonment depriving the person of standing to object to a search and seizure of a van on Fourth Amendment grounds where that person initially began to produce registration papers to the vehicle, but suddenly raised his hands and exclaimed that the van was stolen. Quiroz-Hernandez, 48 F.3d at 864. See also Alvarez, 6 F.3d at 289 (claimant voluntarily abandoned garment bag by stating that it belonged to his “old lady,” and therefore had no standing to object to warrantless seizure of a pistol from the garment bag). In United States v. Hernandez, 7 F.3d 944 (10th Cir.1993), the Tenth Circuit Court of Appeals looked primarily at “whether an individual has retained a reasonable expectation of privacy in the object” as the test for abandonment. Hernandez, 7 F.3d at 947. However, the expectation of privacy in question was further defined as “a question of intent which may be inferred from words, acts, and other objective facts.” Id. (identifying cases from that circuit requiring voluntary intent to abandon the seized property). Thus, the court held that a person had shown intent to abandon property, a backpack, thereby depriving himself of standing to challenge seizure of the backpack, where the person had “elected to distance himself from the backpack upon boarding the bus and repeatedly failed to acknowledge ownership of the backpack after [a boarder patrol agent] repeatedly questioned the bus passengers regarding the backpack’s ownership.” Id. Lack of intent to abandon the property seized is irrelevant where a third person validly takes possession of the property, and the claimant of the property is aware that such a consequence will follow from his or her actions. United States v. Poulsen, 41 F.3d 1330, 1331 (9th Cir.1994) (claimant was aware that storage facility manager would seize property for non-payment of rent, so claimant had no standing for Fourth Amendment challenge to manager’s consent to police search and seizure of contents of locker after manager’s seizure of contents for nonpayment of rent). However, in United States v. Wilson, 36 F.3d 1298 (5th Cir.1994), the Fifth Circuit Court of Appeals held that a person who subsequently claimed a possessory interest in a checkbook found in a trash can inside a friend’s residence had not abandoned the checkbook and therefore had standing to challenge its seizure. Wilson, 36 F.3d at 1303. The Ninth Circuit Court of Appeals found that even property “unwittingly” left behind could be abandoned, looking not to intent, but to the “totality of the circumstances.” See United States v. Arias-Villanueva, 998 F.2d 1491, 1501-02 (9th Cir.1993). In Anas-Villanueva, the criminal defendants challenged the seizure of a key left in a police car after an encounter with police. Arias-Villanueva, 998 F.2d at 1501. The appellate court found that the criminal defendants were never searched; they had no incentive to leave the key in the police car. The totality of the circumstances therefore shows that the key was abandoned. The defendants thus lack standing to challenge the seizure of the key. See United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir.1986). Id. at 1501-02. The focus on the “totality of the circumstances” was the guiding principle for an earlier determination of abandonment by the Ninth Circuit Court of Appeals in United States v. Gonzales, 979 F.2d 711, 714 (9th Cir.1992). In Gonzales, the person subsequently objecting to search and seizure of bags by the border patrol was held to have abandoned the property, not just “unwittingly,” but by disclaiming ownership of the bags and stating that he had no objection to their search even though the bags were sitting in close proximity to him. Gonzales, 979 F.2d at 714. The court held that in the “totality of the circumstances,” the criminal defendant had abandoned the bags, and “therefore lacked standing to object to a search of the bags.” Id. b. Abandonment of the property seized here Under any of these tests, this court concludes that DePugh had not abandoned the property seized by Penning. DePugh never disclaimed ownership of the property or in any way distanced himself from it. Thompkins, 998 F.2d at 632; Ruiz, 935 F.2d at 984; see also Quiroz-Hernandez, 48 F.3d at 864; Ponce, 8 F.3d at 994-95 & n. 4; Hernandez, 7 F.3d at 947; Alvarez, 6 F.3d at 289; Gonzales, 979 F.2d at 714; Roman, 849 F.2d at 922. Although Penning asserts that DePugh “abandoned” the premises and its contents to the bank when he declared bankruptcy, Penning has presented absolutely no evidence that the property seized was “abandoned” at that time. Thus, Penning has failed to meet his burden to identify some portion of the record as showing a lack of a genuine issue that the property was abandoned. Reed, 7 F.3d at 810; Hartnagel, 953 F.2d at 395. Rather, the uncontradicted evidence in the record is that DePugh arranged to leave the property in question in Powell’s keeping at the premises and has never disclaimed its ownership. Penning’s argument that the property seized was simply abandoned “trash” is also wholly unsupported by the record. The items seized were boxed and stored in a privately occupied building by permission of the leaseholder. See Wilson, 36 F.3d at 1303. Either focusing on intent, or upon the “totality of the circumstances,” the only conclusion this court can come to is that DePugh has continuously asserted ownership of his property and provided for its safekeeping with a friend and business associate. This court has already held that DePugh retained an expectation of privacy in the items seized. See Hernandez, 7 F.3d at 947. Consequently, DePugh has standing to pursue his claim of violation of his Fourth Amendment rights, because he had a possessory interest in the property seized. Soldal, — U.S. at -, 113 S.Ct. at 545. 3. Summary On Standiny By way of summary on the issue of DePugh’s standing to assert his Fourth Amendment claims, the court returns to the factors stated by the Eighth Circuit Court of Appeals in Gomez, 16 F.3d at 256. As to ownership, possession and/or control of the area searched or item seized, id., DePugh had no ownership or possessory interest in the premises searched; however, he retained an ownership interest in the items searched and seized. As to historical use of the property or item, id., DePugh had never abandoned the property, but instead placed in it the safe-keeping of a friend and business associate of long-standing. DePugh was incarcerated at the time of the search, so that he could hardly be expected to be making regular use of these materials. Furthermore, DePugh never disclaimed ownership of the materials or in any way distanced himself from them. Admittedly, DePugh had no ability to regulate access to the premises, id., but, in the totality of the circumstances surrounding the search, id., it is apparent that DePugh had a subjective anticipation of privacy in the items seized and that expectation was objectively reasonable. Id. DePugh did not leave his materi