Summary Calendar UNITED STATES OF AMERICA v. Dennis H. Johnson

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30955
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DENNIS H. JOHNSON
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CR-98
Before JOLLY, CLEMENT, and HAYNES, Circuit Judges
PER CURIAM:*
Dennis H. Johnson was convicted by a jury of being a felon in possession
of a firearm, possession of cocaine base (“crack cocaine”) with intent to
distribute, and possession of a firearm in furtherance of a drug trafficking crime.
Johnson argues that the district court erred in denying his motion to suppress
evidence contained in a fanny pack he left at 4279 Odell Street. He also seeks
to suppress statements he made after being confronted with the contents of the
United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2008
Charles R. Fulbruge III
Clerk

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fanny pack, which he claims are the fruit of the poisonous tree. For the reasons
stated below, we affirm.
I.
The evidence adduced at the suppression hearing shows that Johnson and
Darold Williams were standing in front of a house at 4279 Odell Street, across
the street from Johnson’s residence, when police officers arrived to investigate
a complaint regarding drug trafficking at Johnson’s residence. Johnson, who
was wearing a fanny pack, told Williams that he “need[ed] to talk to” him. The
men then went into the house at 4279 Odell Street, which was where Williams
was temporarily living. Once inside, Johnson asked Williams to hold the fanny
pack for him. Despite Williams’s refusal, Johnson placed the fanny pack in the
laundry room. Johnson then emerged from the house at 4279 Odell Street and
went to his residence.
Police officers, who noticed that Johnson was no longer wearing the fanny
pack, went to the house at 4279 Odell Street and spoke with the owner,
Williams’s sister-in-law. After the officers explained their concerns about the
fanny pack, the owner permitted the officers to search the house and take away
any drugs that Johnson may have hidden. The officers searched the house and,
with Williams’s assistance, located the fanny pack hidden in the laundry room.
Upon picking up the fanny pack, an officer felt the outline of a pistol inside. At
that point, the officer opened the fanny pack to secure the suspected weapon. In
addition to the weapon, the officer found crack cocaine and cash inside the fanny
pack. Later, Johnson admitted to the officers that the fanny pack and its
contents were his.
Johnson moved to suppress evidence contained in a fanny pack and
statements he made after being confronted with the contents of the fanny pack.
The district court concluded that, at most, Johnson was a guest present with the
consent of a member of the household, and that as such, he did not have a
reasonable, legitimate expectation of privacy in the fanny pack.

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On appeal, Johnson argues that the focus of this court’s inquiry should not
be on the search of 4279 Odell Street, which Johnson apparently concedes did
not violate his Fourth Amendment rights, but rather should be on the search of
the fanny pack itself. He contends that he had a reasonable expectation of
privacy because he exhibited an actual expectation of privacy in the closed and
zipped fanny pack and its contents. He asserts that the legitimacy of his
expectation of privacy was not diminished because it was “temporarily stored”
at a friend’s house. We disagree.
II.
When reviewing a district court’s grant or denial of a motion to suppress
evidence under the Fourth Amendment, we review a district court’s factual
determinations for clear error and its ultimate Fourth Amendment conclusions
de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). We view
the evidence introduced at a suppression hearing in the light most favorable to
the prevailing party. Id.
“[I]n order to claim the protection of the Fourth Amendment, a defendant
must demonstrate that he personally has an expectation of privacy in the place
searched, and that his expectation is reasonable . . . .” Minnesota v. Carter, 525
U.S. 83, 88 (1998) (internal quotation and citation omitted). The defendant
bears the burden of establishing a reasonable expectation of privacy by a
preponderance of the evidence. United States v. Vega, 221 F.3d 789, 795 (5th
Cir. 2000).
Johnson’s arguments center on the Supreme Court’s decision in Bond v.
United States, 529 U.S. 334, 336-37 (2000). In Bond, the defendant was a
passenger on a bus which had been stopped at an immigration checkpoint. Id.
at 335. An immigration officer boarded the bus, confirmed the immigration
status of the passengers, and on departing the bus, “squeezed the soft luggage
which passengers had placed in the overhead storage space above the seats.” Id.
In one canvas bag he felt a brick-like object. Id. at 336. The defendant admitted

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the bag was his and consented to have the bag searched, and the agent
discovered a brick of methamphetamine. Id. The Supreme Court held that the
search violated the Fourth Amendment, noting that Bond had specifically
attempted to preserve his privacy by using an opaque bag and by placing the bag
over his seat. Id. at 338. The Court also noted that even though a bus passenger
may expect his bag to be handled by other passengers or bus employees, he does
not reasonably expect that anyone will feel or manipulate the bag in an
exploratory manner. Id. at 338-39. The Court held that the agent’s physical
manipulation of the passenger’s carry-on luggage violated the Fourth
Amendment’s proscription against unreasonable searches. Id. at 339.
However, Bond does not hold that a person has a reasonable expectation
of privacy for any closed container no matter where the defendant leaves it, as
Johnson suggests. The Supreme Court based its decision in Bond on the specific
facts of the case, that is, a person traveling by bus with a closed bag stowed in
the luggage compartment overhead. Id. at 338.
In contrast to the defendant in Bond, Johnson abandoned his fanny pack
in someone else’s home against the occupant’s express wishes. “[A]ny guest, in
appropriate circumstances, may have a legitimate expectation of privacy when
he is there ‘with the permission of his host, who is willing to share his house and
his privacy with his guest.’” United States v. Phillips, 382 F.3d 489, 496 (5th Cir.
2004) (quoting United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997))
(emphasis added). But when an individual hides evidence in the home of
unwilling, innocent bystanders, then any subjective expectation of privacy is
unreasonable and is not protected by the Fourth Amendment. See id. at 496-97.
This case is similar to the facts considered by this court in Phillips. There,
Phillips lifted the tin roof of a storage shed in the backyard of a residence and
dropped a grocery bag into the shed. 382 F.3d at 492. Thompson, the owner of
the property, agreed to open the shed for the police, who suspected that the bag

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contained contraband. Id. Police recovered the bag, which contained crack
cocaine and a scale. Id. Phillips argued that he had a reasonable expectation
of privacy in the residence, including the backyard shed, based on “the
longstanding familial relationship” between his family and the Thompson
family. Id. at 494.
Testimony at the suppression hearing revealed that “the two families took
trips together, threw parties together, and generally acted like one family.” Id.
at 495. Phillips “frequently had spent the night” at the residence in the past, but
he had not done so in the five or six months preceding the incident. Id. As a
child, Phillips and a youngster from the other family sometimes went into the
shed “when it was raining and stuff, . . . to listen to the radio.” Id. However,
Thompson had exclusive use of the shed and had the only key. Id. Thompson
did not allow others to store things in the shed without her permission, and
Phillips “never obtained permission to use the shed for any purpose, let alone for
the storage of cocaine.” Id.
This court determined that the district court had properly denied the
motion to suppress. See id. at 496-97. The court noted that there was no
evidence that Phillips was utilizing the shed for anything other than a
commercial purpose, the storage of contraband for later distribution. Id. at 496.
Even if it were assumed that Phillips could establish that he had a reasonable
privacy interest in the Thompson residence based on his prior relationship with
the owner, Phillips “had not shown that he was using the shed with the
permission of Thompson or that Thompson was willing to share her privacy
[interest in the shed] with the defendant.” Id. at 496. This court determined
that “Phillips cannot show that he was legitimately in the Thompson yard
because Thompson never gave him permission to use the shed; as to the shed,
Phillips’ presence was wrongful.” Id. at 497.
Here, although Johnson had a prior relationship with Williams, there is
no evidence that he ever had the permission of the occupants or owner of 4279

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Odell Street to use that home for storage. On the day in question, Johnson
asked Williams for permission to store his fanny pack, but Williams refused.
Johnson then proceeded to leave the fanny pack in the home despite Williams’s
wishes. As we held in Phillips, Johnson had no right to object to the consensual
search of 4279 Odell Street, had no reasonable expectation of privacy in the
contraband he left there, and cannot complain that the results of that search
were used as evidence against him. See 382 F.3d at 496-97.
While Johnson argues that Williams’s refusal to allow him to leave the
fanny pack concerns only the search of 4279 Odell Street, these circumstances
also must be considered when deciding whether Johnson had a reasonable
expectation of privacy for the fanny pack itself. This court has held that a
defendant who abandons or disclaims ownership of a suitcase has no legitimate
expectation of privacy in that suitcase or its contents and, therefore, cannot
challenge a search of that suitcase. United States v. Roman, 849 F.2d 920, 922-
23 (5th Cir. 1988). Although Johnson argues that he did not intend to relinquish
ownership of the fanny pack, he “need not have abandoned the searched item in
the strict property sense, where an intent to relinquish ownership must be
shown; merely an intent voluntarily to relinquish his privacy interest is
sufficient.” United States v. Barlow, 17 F.3d 85, 88 (5th Cir. 1994). Johnson
abandoned all control of the fanny pack by leaving it at 4279 Odell Street
without permission of the home’s occupants, and thus he could not have
reasonably expected that the contents of the fanny pack would remain private.
Because we hold that the district court did not err in admitting evidence
from the search of Johnson’s fanny pack, we need not reach Johnson’s “fruit of
the poisonous tree” claims.
The judgment of the district court is AFFIRMED.

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