Fourth Circuit holds that business guest had no expectation of privacy in friend's apartment

In UNITED STATES v. GRAY, Askew sought to suppress evidence (drugs and weapons) found in an illegal search of his friend's apartment. In upholding the district court's refusal to suppress evidence, the Fourth Circuit drew a distinction between business and social guests and drew upon "the fact that a social host often shares not only his home but also his privacy with his guest." According to the panel:

Many social guests entrust their hosts with the safety and security of both their persons and their belongings. An overnight guest, for example, seeks shelter in another’s home "precisely because it provides him with privacy, a place where he and his possessions will not be disturbed." Id. The same generally cannot be said of business visitors. Often strangers with little or no connection to a residence, business associates may or may not have reasons for mutual trust. To expand the protections afforded by the Fourth Amendment to cover any such caller, does not map onto "the every day expectations of privacy that we all share."

Judge Michael wrote a dissent in which he challenged the majority for using facts from a presentence report to support its finding made regarding suppression. "Today marks the first time an appellate court has affirmed a pretrial suppression ruling based on facts taken from a presentence report or sentencing findings." Judge Michael also pointed out that for suppression and the finding of a business relationship which denied Askew a right of privacy, the majority used presentence report material.

Because no court of appeals had ever considered sentencing evidence in its review of a suppression motion before today, neither the district court nor Askew had any reason to expect that Askew’s complete cooperation during the sentencing process (which was required of him under the terms of his plea agreement) might work to his detriment in this appeal.

Sounds like this one should be considered en banc to me.