United States v. Corey Lee Fay ( 2005 )

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 apartment. 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 domestic 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.

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, Kelley 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 possession of a firearm. On January 15, 2004, Fay moved to suppress the evidence. On February 24, 2004, a magistrate judge held a hearing on the motion. On March 30, 2004, the magistrate 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 expressing some doubt that Fay had standing to object, as he had disavowed ownership of the bag.

Fay entered a plea of guilty to the indictment with the condition that he could appeal denial of his motion to suppress. He now appeals.

ANALYSIS

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 (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 capital 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 difference 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 common 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.