United States v. 2005-06-03 | 04-10401 | USA VFAY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-10401
Plaintiff-Appellee, D.C. No.
v.  CR-03-00453-HDM
COREY LEE FAY, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
April 13, 2005—San Francisco, California
Filed June 3, 2005
Before: John T. Noonan, David R. Thompson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Noonan
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COUNSEL
Jason F. Carr, Assistant Federal Public Defender, Las Vegas,
Nevada, for the defendant-appellant.
Crane Pomerantz, Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Corey Lee Fay appeals the district court’s denial of his
motion to suppress and his consequent judgment of conviction
as a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). We hold that there was no violation of the Fourth
Amendment in the discovery of Fay’s gun. We affirm the
judgment of conviction.
FACTS
Mandy Ortiz was the tenant of Apartment 1099 at 2200 N.
Torrey Pines, Las Vegas, Nevada. Fay lived with Ortiz and
her four-year-old daughter at this address. Ortiz knew that Fay
had been a gang member and that he kept a gun in the apart-
ment. On October 8, 2003, Ortiz and Fay quarreled. Fay
angrily threatened Ortiz. Ortiz tried to leave to go to her job
at Sav-On. Fay refused to let her leave without him and got
in her car and rode with her to the store, where the quarrel
continued. Officer Stout responded to a call reporting domes-
tic violence. Ortiz told Stout that she was afraid of Fay, that
there was a warrant for his arrest, and that he had a gun at her
apartment. After checking on the arrest warrant, Stout arrested
Fay and then, with Fay in his car, followed Ortiz back to her
apartment at Ortiz’s request.
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Ortiz asked Fay to accompany her into the apartment and
told Stout that she wanted Fay’s gun out of her house. She
pointed to a black duffle bag on a shelf in the open laundry
room and said, “He keeps it there.” Stout reached up on tip
toes and retrieved the bag. He ascertained that the bag was
open; had no name on it; contained men’s clothes; contained
a box of ammunition; and showed the outline of a gun. He
called for help from Detective Joe Kelley. Upon arriving, Kel-
ley asked Fay if the gun Officer Stout had seen in outline was
his. Fay said that it belonged to a friend but that he had it in
his possession for more than a month. Kelley obtained a
search warrant by telephone then searched the bag and found
the gun.
PROCEEDINGS
On October 14, 2003, Fay was indicted as a felon in pos-
session of a firearm. On January 15, 2004, Fay moved to sup-
press the evidence. On February 24, 2004, a magistrate judge
held a hearing on the motion. On March 30, 2004, the magis-
trate judge filed a report recommending that the motion be
denied because Ortiz had at least apparent authority to allow
Stout to move the bag and the search after that move was by
virtue of a warrant. The district court adopted the magistrate’s
report and recommendation, specifically finding that Fay had
no reasonable expectation of privacy in the bag and express-
ing some doubt that Fay had standing to object, as he had dis-
avowed ownership of the bag.
Fay entered a plea of guilty to the indictment with the con-
dition that he could appeal denial of his motion to suppress.
He now appeals.
ANALYSIS
[1] Fay relies on three cases where guests were found to
have a reasonable expectation of privacy as to property stored
in their host’s home. United States v. Davis, 332 F.3d 1163
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(9th Cir. 2003); United States v. Fultz, 146 F.3d 1102 (9th
Cir. 1998); and United States v. Welch, 4 F.3d 761 (9th Cir.
1993). In each of these cases, the container was closed. A cap-
ital difference here is that the bag was open in an area readily
accessible to anyone in the apartment. Fay argues that he
expected it to be private because he put it on a high shelf, just
as Davis had put his gym bag under his bed. But again the dif-
ference is obvious. To hide an object under the bed one is
sleeping in is not the same as putting it on a shelf in a com-
mon laundry room. The district court did not err in its findings
of fact, and our review of its legal conclusion de novo reaches
the identical result: there was no reasonable expectation of
privacy and no violation of Fay’s constitutional rights in the
search of an open duffle bag located on a laundry room shelf.
The judgment of conviction is AFFIRMED.
NOONAN, Circuit Judge, concurring:
I write separately to state that, while I join the opinion I’ve
written, it seems to me that we are engaging in the drawing
of fine distinctions that do not need to be drawn. The simple
facts here are that a householder wanted illegal property out
of her home. Fay’s expectations have no bearing on her right
to get it out.
A guest who brings a bunch of banknotes into the house,
tells his host that they are the proceeds of a bank robbery, and
leaves them in a bag in the guest room has no legitimate
objection to his host turning him in and turning over the bag.
A guest who brings to his host’s home drug paraphernalia and
tells his host that he’s hiding it in the closet has no reason to
believe that his host will not telephone the police and tell
them to pick the paraphernalia up. The felon who shows his
girlfriend that he is keeping a firearm in the laundry room has
no privacy claim that she can’t rid her house of a gun by ask-
ing the police to remove it. On what possible basis can a man
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committing a crime and admitting that he is doing the crimi-
nal deed claim that his confidant should preserve his secret?
A person cannot disable his host from bringing criminal
proceeds or paraphernalia or weapons to the attention of the
police nor invoke the Fourth Amendment when his host seeks
to disassociate herself from his criminal conduct by summon-
ing police assistance.
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