* 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should not be published and is not precedent except under the limited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
No. 07-30955

2

fanny pack, which he claims are the fruit of the poisonous tree. For the reasons

stated below, we affirm.

I.

The evidence adduced atthe 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. 
No. 07-30955

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On appeal, Johnson argues thatthe focus ofthis 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
No. 07-30955

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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 courtin 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
No. 07-30955

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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 atthe 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.