United States v. Fay ( 2005 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 04-10401
    Plaintiff-Appellee,
    v.                            D.C. No.
    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
    6267
    UNITED STATES v. FAY                  6269
    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.
    6270                 UNITED STATES v. FAY
    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
    UNITED STATES v. FAY                   6271
    (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
    6272                UNITED STATES v. FAY
    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.
    

Document Info

Docket Number: 04-10401

Filed Date: 6/3/2005

Precedential Status: Precedential

Modified Date: 10/13/2015