dissenting.
Some say the Fourth Amendment—a provision that protects precious freedoms—is. dying “a death by a thousand cuts,” See United States v. Griffin, 589 F.3d 148, 154 (4th Cir. 2009) (Gregory, J., dissenting). They might be right. Just consider what happened here.
All agree that given how intensely personal Fourth Amendment rights are, see Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), Aiken must prove that the contested search violated his legitimate expectation of privacy, under a test with two components—one subjective, the other objective, see United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009). The subjective component requires that he show that he had an actual expectation of privacy in the searched area. See Rheault, 561 F.3d at 59. The objective component requires that he show that this expectation is onb society is ready to accept as reasonable. See id. Aiken must carry this burden by a preponderance of the evidence, see United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)—which is a more-likely-than-not standard, see United States v. Correa-Osorio, 784 F.3d 11, 24 (1st Cir. 2015). Accepting the judge’s factual findings absent clear error but inspecting his legal conclusion de novo, we must scan the entire record in the light most flattering to his ruling, see United States v. Turner, 169 F.3d 84, 85 n.1 (1st Cir. 1999), “drawing all”—repeat, all—“reasonable inferences in the ruling’s favor,” see United States v. McGregor, 650 F.3d 813, 823-24 (1st Cir. 2011) (citing United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999)). And, ultimately, we must affirm if any sensible view of the record backs that ruling up. See United States v. Materas, 483 F.3d 27, 32 (1st Cir. 2007).
Aiken introduced no evidence at the suppression hearing. He just cross-examined the government’s witnesses. And when all was said and done, the judge—after viewing the • suppression-hearing record through the proper legal lens—made several critical findings:
1. Bonnett “rented” the room with Browne the day before the search went down.
2. So “the room was Bonnett’s room” too.
3. And “Aiken stayed there with Bon-nett’s knowledge.”
4. More, “Aiken was in the room” not just with Bonnett’s “knowledge,” but “with Bonnett’s permission.”
6. The search “occurred around 9:00 a.m.”
6. Bonnett had “possession” of the room “and had a key to the room” when law enforcement “encountered him and Aiken at the motel.”
7. “The morning hour,” the “appearance of the room,” and the “appearance of its ... two occupants—Bon-nett and Aiken—” jibe with their “having slept in. the room and, therefore, having occupied the room for more than a brief period.”
And make no mistake—the veteran judge did not pull these findings out of thin air. Among the supporting evidence in the record is:
1. Bonnett’s calling - the room (in an affidavit) “our room”—meaning his and Browne’s room.
2. An agent’s saying the room had two beds, one of which “look[ed] like the sheets and the comforters were pulled back” and the other of which looked “like it had just been made.”
3.The agent’s saying Aiken had on shorts and maybe a- t-shirt, but no shoes, while Bonnett had on “mesh shorts and a t-shirt”—for what it’s w )rth, a quick check of publicly available records shows the outside temperature in the Lewiston area hovered . around 43 degrees Fahrenheit at the time of the search,9 a fact we can take judicial notice of. See Sharfarz v. Goguen (In re Goguen), 691 F.3d 62, 71 n.6 (1st Cir. 2012).
4. And Aiken’s telling his mother during a recorded jailhouse call that
a. he had “spent the night” in Bon-nett’s room, with Bonnett’s blessing;
b. he “was asleep” when the agents showed up; and
c. he “went back in the bed” after he first heard the agents’ knocking..
By the way, the prosecutor presented this evidence after agreeing with Bon-nett’s lawyer .that the transcripts— which confirm Bonnett had “registered” as a motel guest—were relevant to the reasonable-expectation-of- • privacy question.
Anyhow, after making his findings, the judge ruled that “Aiken had an actual, subjective expectation of privacy” in the searched room “that was objectively reasonable.” Which triggered this appeal by the government.10 ■
Critically, the majority rules none of the judge’s findings clearly erroneous. Rightly so, since “[t]he clear-error hurdle is, of course, quite high”—under that standard, we can’t flip the judge’s “findings of fact or conclusions drawn therefrom unless, on the whole of the record, [we] form a strong, unyielding belief that a mistake has been made.” Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st Cir. 1993) (emphasis added) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).11 And no judge on this panel sees anything approaching that standard here.
Yet curiously, despite letting the judge’s findings stand, the majority says Aiken was not an “overnight guest,” but merely a “drug trafficker who [was] present inside [the] motel room and [fell] asleep for an unknown period of time.” Having deemed his “guest status” inadequate to “resolve the question of whether he had a reasonable expectation of privacy,” the majority then shifts focus to “(1) the nature of [Aiken’s] visit” to the motel, “(2) his length of stay, and (3) his relationship to” Bonnett and Browne. And after blasting him for coming “forward with no evidence on a motion that he had the burden to carry,” the majority says an analysis of those three factors shows he has no “objectively reasonable expectation of privacy.” Then the majority basically ends it all with these words: “sleeping in a motel room for longer than a brief period of time, without more, is insufficient to warrant Fourth Amendment protection.”
But the majority makes an error right out of the gate, an error that infects its entire analysis. I say this because the judge’s unreversed findings—coupled with the uncontested record evidence—actually point to Aiken’s being an overnight guest. Think about it: Co-room-renter Bonnett let Aiken stay in the room, a room that was just as much Bonnett’s as it was Browne’s. That is a game-changing finding, since no one—not even the government—disputes that co-room-renter Browne had the authority to have guests stay over. And not only was Aiken in the room on Bonnett’s say-so, but Aiken “slept” there, and “for more than a brief period”—yet another game-changing finding, especially since the undisputed evidence (which the government itself introduced) shows Aiken “spent the night there.”
The majority tries earnestly—and in seven ways—to argue against the overnight-guest designation. But none persuades me.
First, the majority criticizes Aiken for using “the government’s evidence to satisfy his burden” on the reasonable-expectation-of-privacy front, instead of “testify[ing] or put[ting] on any evidence” himself. But I know of no authority—and the majority cites none—suggesting that Aiken couldn’t lean on the government’s evidence in shouldering his burden. That’s hardly a surprise, since solid precedent points in precisely the opposite direction—the Federal Reporter is full of cases declaring that we must “consider[ ] all the evidence” in deciding whether “[r]eversal is appropriate.” See, e.g„ United States v. Martinez, 762 F.3d 127, 130 (1st Cir. 2014) (emphasis added).12 If more were needed—and I doubt that it is—even the prosecutor conceded below that the judge could consider the government-proffered jailhouse-call evidence in deciding whether Aiken had Fourth Amendment rights in the room. So argument-number one has no oomph, as I see it.
Second, the majority says (emphasis mine) that while the judge rightly inferred from the evidence that Bonnett had invited Aiken into the room, we cannot “make any other inferences to support Aiken’s reasonable expectation of privacy” because he offered “no evidence” on an issue on which he bears the burden of proof. That statement strikes me as odd, and for a simple reason: argument-number one implies that witness and affidavit testimony offered by others can’t help Aken, yet argument-number two concedes—in a way that seemingly contradicts argument-number one—that the judge correctly drew the Bonnett-invited-Aken inference from witness and affidavit testimony offered by others. Anyhow, the subtext of the majority’s argument is the suggestion that the law puts some kind of cap on the number of inferences that judges can draw from the evidence. No dice, I’m afraid: the majority doesn’t identify—and I’ve not found—a single ease supporting that proposition, probably because precedent commands us to “draw[ ] all reasonable inferences” in support of the judge’s ruling. See McGregor, 650 F.3d at 823-24 (double emphasis added). Which, by my reckoning, takes all the wind out the majority’s can’t-make-additional-inferences argument.
Third, the majority elsewhere contends that “the amount of time [Aiken] spent in the room” is “unknown” and—echoing a familiar theme—asserts that because he failed to “put forth evidence” on that score, “he failed to meet his burden.” Not so, I say. As noted above, the government introduced evidence—in the form of an audio disc and transcripts of Aken’s jailhouse calls with his mother—that Aken had “spent the night” in Bonnett’s room. And once again, the majority cites no authority—nor have I found any—indicating that Aken could not rely on this evidence in meeting his burden. Enough said about argument-number three.
Fourth, the concatenation of circumstances—the time of the search (9:00 a.m.-. ish), the room’s condition (e.g., one bed unmade, the other just made), and the occupants’ appearance {e.g., Aken had just woken up and was barely dressed)—led the judge to find that Bonnett and Aken had “slept in the room.” The majority tries to score points by playing up how the judge made “no finding that [Aiken] was an ‘overnight guest.’ ” The argument comes to naught, however. Yes, the judge never used the “overnight guest” buzz-phrase. But the judge did find that Aken had “slept in the room” and thus had “occupied the room for more than a brief period.” The majority thinks the “more than a brief period” finding has no significance—maybe the majority thinks there’s a magic number of hours one must spend in a room to get tagged as an overnight guest, though the majority doesn’t say what that number is (3 hours? 6 hours? 9 hours?). No matter. The undisputed record evidence shows that Aken stayed in the room overnight—as the guest of Bonnett, who had rented the room the day before the search with Browne, as the judge sup-portably found.13 So in other words, the uncontested evidence and the unreversed findings put Aiken squarely in the overnight-guest camp. And that rneans argument-number four isn’t a difference-maker either, at least in my book.
Fifth, focusing on the “reasonable” part of the “all reasonable inferences” standard discussed in cases like McGregor and Owens, the majority suggests that it’s simply “unreasonable” to infer that Aiken stayed in the room “overnight.” I couldn’t disagree more strongly: given that- the only evidence in the record is that Aiken “spent the night” in Bonnett’s room, I think it’s perfectly reasonable to infer that he stayed there “overnight”—put more bluntly, “spent’the night” = “overnight.” And to the extent the majority thinks inference-drawing is verboten in this context, our caselaw holds otherwise—to quote from one of our many cases: “[wjhere specific findings are lacking, we view the record in the light most favorable to the [suppression] ruling, drawing all reasonable inferences in support of the challenged ruling,” See Owens, 167 F.3d at 743 (emphasis added).
Sixth, in a variation of á just-discredited argument, the majority implies that because Aiken “provided no evidence to satisfy his burden,” one- can’t draw the overnight-guest inference that he wants. The unstated but inescapable premise of the majority’s position is that one can’t make reasonable inferences from the government’s evidence. But like the earlier one, this argument—also made without citation to any authority—is a no-go: the caselaw (as I keep repeating) says we must draw all reasonable inferences in favor of the judge’s ruling after the reviewing the record as a whole, see McGregor, 650 F.3d at 823-24, and obviously, the government’s evidence is part of the whole record.
Seventh and finally, the majority claims that Aiken can’t be an overnight guest for constitutional purposes because his ease is too dissimilar to United States v. Bain—a hot-off-the-presses decision where we held that the defendant who had stayed overnight at his girlfriend’s apartment could challenge the constitutionality of a search there that turned up (among other things) drugs and tools of the drug trade. See 874 F.3d 1, 10, 13-14 (1st Cir.' 2017). Unlike Aiken, the Bain defendant provided “evidence of his social relationship to the host and purpose of his visit.” At least that’s what .the majority thinks. I beg to differ. Again, and at the risk of excessive repetition, the unchallenged evidence here shows . Aiken certainly knew Bonnett well enough to stay with him in the room overnight and to catch some Zs in one of the beds— activities that society regards as private and that put him in the overnight-guest category. See Minnesota v. Olson, 495 U.S. 91, 96-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (stressing that an overnight lodging provides as much privacy and security on a short-term basis as one’s home does on a long-term basis, thus giving the overnight guest a reasonable expectation of privacy). And the majority points to no language in Bain that compels a contrary conclusion.
Given Aiken’s overnight-guest status, the rest of the analysis is easy-peasy. Óur judicial superiors held decades ago that a person’s “status as an overnight guest is alone enough to show that he 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. 1684 (emphasis added); And-the Court provided reasons aplenty for the rule:
To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. Staying- overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more- distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we, will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.
Id. at 98, 110 S.Ct. 1684. An overnight guest, the Court went on to say,
seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host . and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.
Id. Of course, it goes without saying (but I say it anyway) that a motel room “can clearly be the object of Fourth Amendment protection as much as a home....” See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); see also Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).
Relying on Olson, we held in Bain that the defendant’s status as an overnight guest at his girlfriend’s apartment—in and of itself—gene him “a reasonable expectation of privacy in the [premises].” See Bain, 874 F.3d at 13. So he had “a sufficient connection with [the apartment]” to seek suppression of drugs and drug-trade tools found there. Id. at' 11. And because Aiken fits within the overnight-guest category, Olson and Bain require us to affirm the-judge’s order below—-of that I am certain.14
Perhaps sensing the difficulties in its position, the majority attempts to distinguish Bain, arguing that Bain “present[ed] an entirely separate legal issue from this case: whether an overnight guest in a home has a property-based Fourth Amendment right to challenge the police’s use of a key to open his host’s front door.” “Aiken,” the majority continues, “is not claiming here that the police trespassed upon his- curtilage”—“[rjather, at issue here is his privacy interests inside the motel room, and whether he provided sufficient evidence to make a threshold showing that he had a reasonable expectation of privacy.”
- The problem for the majority is this. Before' addressing and rejeetifig the government’s claim “that a search defined in part by an invasion of property rights is a search only as to persons who could maintain á common law trespass claim,” we emphasized how the defendant was an “overnight guest” of his girlfriend. Bain, 874 F.3d at 13. And we emphasized as well how “[u]nder Supreme Court precedent,” his overnight-guest status “ ‘is alone enough to show that he had an expectation of privacy in the [apartment] that society is prepared to recognize as reasonable.’ ” Id. (quoting Olson, 495 U.S. at 96-97, 110 S.Ct. 1684). Importantly here, the just-quoted Bain statements are holdings—because they were necessary to the result there—and so we’re bound to follow them. See generally Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (explaining that “when an opinion issues for the [c]ourt, it is not only the result but also those portions of the opinion necessary to that result by which we are bound”). And it is these holdings that devastate the majority’s analysis.
Bottom line: Reading the record in the light most favorable to the judge’s ruling, and keeping in mind that his decision must stand if any reasonable view of the evidence supports it, I believe the unreversed findings and the uncontested evidence establish—under controlling precedent—that Aiken was an “overnight guest” of Bonnett in a constitutional sense. Which again means Aiken had a legitimate expectation of privacy in the motel room and so could challenge the search. And because the majority (though conscientious) sees the matter differently, I respectfully (but unequivocally) dissent.
. See Local Climatological Data Station Details, NOAA (last visited Nov. 14, 2017), www. ncdc.noaa.gov/cdo-web/datasets/LCD/stations/ WBAN:94709/detail (select "2014” for year; select "November" for month; select "7” for day; then click “View Data”).
. The government also appealed the judge’s ruling that Bonnett’s privacy expectation met the subjective and objective criteria discussed .above. But the government later asked us to dismjss that appeal, see Fed. R. App. P. .42(b), and we obliged.
. See also Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013) (noting that clear error means the judge got things "wrong with the force of a 5 week old, unrefrigerated, dead fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001))).
. See generally United States v. Castellanos, 716 F.3d 828, 846 (4th Cir. 2013) (emphasizing that a "defendant need not affirmatively present evidence of his legitimate expectation of privacy; rather, he may simply ‘point to specific evidence in the record which the government [has] presented’ ” (quoting United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995) (alteration in original))); see also 6 Wayne R, LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b) (5th ed. Oct. 2017) (noting that “it may happen that the [defendant’s] burden is actually met ... by evidence given by the [government]”).
. The majority criticizes Aiken for not producing evidence that he "had a relationship with Browne” or that he had stayed in the room "with Browne’s permission.” But because—as I’ve just explained—the room was just as much Bonnett’s as it was Browne's, the majority's Browne-centric argument carries no weight.
. The majority thinks I've ignored Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). My response: Carter held that two defendants did not have a legitimate expectation of privacy in an apartment they had occupied only for 2 ½ hours and only for the purpose of packaging drugs. Id. at 86, 91, 119 S.Ct. 469. The Carter defendants did not come within the overnight-guest category, obviously. See id. at 91, 119 S.Ct. 469,- But , Aiken does, for the reasons recorded above. So the majority's Carter-driven argument can't succeed.
Separately but relatedly, the majority implies that I think "the Supreme Court meant to encompass all guests under the Olson analysis.” But I think nothing of the sort. As I’ve been at pains to stress, Olson holds that an overnight guest has a legitimate expectation of privacy in his host's abode—and constitutionally speaking, Aiken has achieved an overnight-guest status.