332 F.3d 1163 (9th Cir. 2003), 01-10739, U.S. v. Davis

Docket Nº:01-10739
Citation:332 F.3d 1163
Party Name:U.S. v. Davis
Case Date:June 11, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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332 F.3d 1163 (9th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Damen Anthony DAVIS, Defendant-Appellant.

No. 01-10739.

United States Court of Appeals, Ninth Circuit

June 11, 2003

Argued and Submitted Sept. 10, 2002.

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[Copyrighted Material Omitted]

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Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant.

Ronald C. Rachow, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CR-00-00071-DWH.

Before: KOZINSKI and KLEINFELD, Circuit Judges, and KARLTON, District Judge. 1

Opinion by Judge KARLTON; Opinion concurring in part and dissenting in part by Judge KLEINFELD.


KARLTON, District Judge:

Damen Anthony Davis appeals the denial of his motion to suppress as evidence a shotgun and the statements he made following the search that led to its discovery. We conclude that the motion should have been granted and thus reverse the contrary orders of the district court.


In February 2000, the police in Sparks, Nevada, were investigating an incident involving a game of Russian roulette that had ended in a shooting death. The police sought to locate Davis when they learned that he might have witnessed the incident.

On the morning of February 24, 2000, police officers Susich, Dyer and Benedetti

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visited Jessica McMannis at her place of employment. McMannis leased an apartment with Stephanie Smith and shared a bedroom with Davis in that apartment. When asked about Davis' whereabouts, McMannis lied to the police and told them that she did not know where he lived. She apparently concluded that the police did not believe her, because, according to her testimony, after they left, she called Stephanie Smith to warn her that the police were coming and told Smith not to let them into the apartment.

Indeed, the officers did go to the apartment. When they arrived, Smith was the only person there. She allowed the officers to enter and provided them with oral and written consent to search the premises. Smith also provided the officers with a copy of the lease, which listed only Smith and McMannis as tenants.

The apartment had two bedrooms. Smith slept in the first bedroom and McMannis and Davis slept in the second bedroom. Smith told the officers, according to Detective Benedetti's testimony, that the second bedroom was occupied not by her, but by McMannis and Davis, and that Davis' belongings were in that room. Davis kept all his belongings in that bedroom. When the officers entered the bedroom, they found Davis' belongings there. Under the bed, they found a black gym bag. The officers opened the gym bag and discovered the shotgun. Detective Benedetti testified that he left his business card with a note asking Davis to contact him because he believed, based on Smith's statements, that Davis lived there. The police did not look for Davis at any other address.

Officer Dyer, who was last to testify regarding the search, provided an account that was, in several respects, at odds with the testimony of all of the other witnesses. For instance, Dyer testified that Smith had told the officers that the room where Davis' belongings were found was a "spare" room, that McMannis did not reside in the apartment at all despite the presence of her name on the lease, and that no areas of the apartment were "off limits" to her. Dyer acknowledged that he did not document any of these alleged statements, either in his report or his notes. On cross-examination, Dyer also admitted that Smith had told the officers that Davis' belongings were located in the bedroom where the gun was eventually found.

Approximately four hours after the search, Davis voluntarily met with Detective Benedetti at the police station. Davis was neither placed under arrest nor given Miranda warnings. Under interrogation, he admitted that he had been in possession of the shotgun for approximately three weeks. Benedetti testified that he was "probably" aware at the time of the interview that Davis was an ex-felon and could not legally possess the shotgun, and that Davis' admission was "most likely" in response to his questions regarding the gun.

On March 13, 2000, police officers went to the apartment in order to arrest Davis. When they arrived, McMannis led them to the bedroom, where Davis was sleeping on the same bed under which the shotgun had been found.

Davis was indicted for possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He moved to suppress both the shotgun and the statements he had made to Benedetti. After a hearing at which Susich, Benedetti, Dyer and McMannis testified, the district court denied the motion from the bench. The court made no findings of fact, but concluded that Davis did not have standing to object to the search and that, even if he did have standing, the search was legal because there was valid third-party consent. The court dismissed Davis'

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claim that his incriminating statements should be suppressed as "fruit of the poisonous tree" because it concluded that the search was lawful. Davis entered a conditional plea of guilty, preserving his right to appeal the denial of the motion, and this timely appeal followed.


Where, as here, no findings of fact were made by the district court, "this court will uphold the denial of the motion to suppress if there is a reasonable view of the evidence that will sustain it." Guam v. Palomo, 35 F.3d 368, 375 (9th Cir. 1994); United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988).


Because the Fourth Amendment protects "people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Davis must first demonstrate that he personally had a "legitimate expectation of privacy" in the place searched or the thing seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In the absence of such an expectation, Davis' motion fails. 2

The government argues that Davis lacked an expectation of privacy in the apartment because he was not a lessee and because the evidence indicates that he stayed at the apartment only occasionally. The record suggests that Davis was more than simply an occasional houseguest. Even assuming that the government's view of the evidence is correct, however, the argument is misplaced. It is well-established that Davis' status as an overnight guest is enough, in itself, to establish that he had an expectation of privacy in the apartment. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000) ("Whether or not he can show indices of residency (such as keys to the premises or the ability to come and go and admit or exclude others), an overnight guest in another's home has a reasonable expectation of privacy ...."). Moreover, the question before us is not whether Davis had a legitimate expectation of privacy in the contents of the apartment generally, but whether he could reasonably believe that the contents of his gym bag would remain private.

"A person has an expectation of privacy in his or her private, closed containers" and "does not forfeit that expectation of privacy merely because the container is located in a place that is not controlled exclusively by the container's owner." United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) (finding defendant had reasonable expectation of privacy in cardboard boxes stored in another person's garage); see also United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (finding defendant had reasonable expectation of privacy in her purse left in a rental car). The government does not suggest, and we do not conclude, that Davis had less of a legitimate expectation of privacy in his gym bag than one would have in a suitcase, a purse, a briefcase or a cardboard box. See United States v.

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Medina-Verdugo, 637 F.2d 649, 653 (9th Cir. 1980) (Kennedy, J.) ("We assume, moreover, because the Government has not argued to the contrary, that the gym bag searched here is the equivalent of a closed suitcase to which an expectation of privacy attaches.").

At oral argument, the parties were uncertain as to whether the record confirmed that Davis' bag was closed at the time that the officers found it. In his brief to the district court, however, Davis asserted that the officers found his bag under the bed and then opened it, and the government stipulated to these facts in its opposition brief. We have held that factual stipulations in a trial brief may be treated as "judicial admissions." American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226-27 (9th Cir. 1988). Such admissions, which "have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact," are binding on both the parties and the court, including this court. Id. at 226 (internal quotation marks omitted). Moreover, the government does not argue here, and we find no reason to suppose, that Davis' bag was not closed. 3

The fact that Davis stored his bag under a bed, even though the bed was not exclusively under his control, strongly supports our conclusion that his expectation of privacy in the bag was reasonable. See United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. Unit A July 1981) (holding that defendant had reasonable expectation of privacy in gambling records stored under his parents' bed; although "he did not reside regularly at his parents' home, he kept clothing there and had occasionally remained...

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