REPORT AND RECOMMENDATION

JAMES E. GRAHAM, Magistrate Judge.

Officers responding to a domestic dispute at 506 W. 62nd Street on September 17, 2017, interviewed defendant Iverson Lang before taking him into custody. See Affidavit and Application for a Search Warrant, attached as Exh. A to defendant's motion at doc. 22-1.1 In the early hours of the morning, after taking Lang into custody, law enforcement secured a warrant to search the residence and seize any firearms, ammunition, or other gun-related items. Id. Several firearms, assorted magazines, and ammunition were recovered during that search. See Savannah Police Department Case Activity Log, attached as Exh. B to the Government's response.

Lang moves to suppress any statements he made during the prearrest September 17th interview, contending that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The Government, however, concedes that no statements from that interview will be offered "in its case-in-chief, in cross-examination, or in rebuttal." Doc. 31 at 7. Plaintiff's motion should therefore be DISMISSED as moot to the extent he asks the Court to exclude any such statements.

The warrant, however, survives his challenge. As an initial matter, it is not clear that Lang even has standing to challenge the warrant.2 Lang testified (against the advice of counsel) that he was merely a temporary guest in his girlfriend's mother's residence, there to help "clean up" after its owner/occupant's death, that law enforcement did not search the premises while he was present and had refused to consent to any search, and that he was already in custody at the time the warrant was executed the following day.3

"Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). 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).

Defendant has not met his burden to show that he had a subjective — much less a legitimate — expectation of privacy sufficient to challenge the search of someone else's home, in which he was no more than a visitor, when he was no longer present. See United States v. Miller, 387 F. App'x 949, 951 (11th Cir. 2010) (where defendant is neither the owner nor the lessee of the place searched, to be able to contest a search he must "demonstrate a significant and current interest" in the property at the time it was searched) (quotes and cite omitted); United States v. Rodríguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009) (a defendant who was "a casual visitor for a brief period" in another person's apartment had no reasonable expectation of privacy in the apartment); Minnesota v. Carter, 525 U.S. 83, 90 (1998) (making important distinction between overnight guests and casual guests, holding that "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"). Lang's lack of standing provides an independent ground to deny the motion.

Even if Lang had standing to challenge the warrant, he has made no showing that it is invalid. Fully crediting Lang's argument that his statements should be suppressed, the warrant made only two references to statements made by Lang on September 17th. See doc. 22-1. Even if those statements are struck from the affidavit, Lang has mounted no showing that the rest of the affidavit failed to "establish[] probable cause to believe that a firearm and/or ammunition would be found in the [] residence shortly after the described encounter." Doc. 31 at 7-8. Indeed,

Doc. 31 7-8. As explained by the Government, even assuming arguendo that the warrantless entry and questioning of Lang without reading his Miranda rights requires striking all information gained from that interview from the warrant affidavit, the remaining affidavit contains sufficient facts to support probable cause. Doc. 31 at 5 (citing, inter alia, Franks v. Delaware, 438 U.S. 154, 172 (1978) and United States v. Karo, 468 U.S. 705, 720 (1984)). When given an opportunity to argue otherwise, defendant rested on his brief, which failed to address the issue at all. It is defendant's burden to show that a warrant is invalid, United States v. Osborne, 630 F.2d 374, 377 (5th Cir. 1980), and defendant has not even approached meeting that burden. Either because he lacks standing or because he has not shown the warrant's invalidity, the motion to suppress should be DENIED as to his request to exclude any fruits of the search pursuant to the warrant.

This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.

After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App'x 542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED.