United States v. Damen Anthony Davis

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

OPINION

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.

FACTS

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 *1166 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…

concurring in part and dissenting in part:

I respectfully dissent.'

Like the majority, I reject the government’s argument that Davis lacked standing under Rakas v. Illinois 1 to contest the *1172 search of his bag. As a houseguest in the apartment, he had standing to assert his own legitimate expectation of privacy in his hostesses’ home under Minnesota v. Olson.

I dissent from the conclusion, because the majority decision improperly extends United States v. Fultz. 3 The majority errs partly in its reading of the record, and partly in its understanding of the law on closed container searches.

First, the facts. A man had died of a gunshot wound to the head and the police had learned that Davis was at the scene. They wished to speak with Davis. It turned out that, so far as the police learned, the man shot himself in the head “playing” Russian roulette.

The police asked a woman, Jessica McMannis, who worked in the Reno Police Department dispatch center, if Davis lived at the apartment that was searched. It turns out he did, with her, but she did not tell the police that. She lied, to deceive them into thinking Davis did not live there. McMannis testified at the suppression…

332 F.3d 1163 UNITED STATES of America, Plaintiff-Appellee, v. Damen Anthony DAVIS, Defendant-Appellant. No. 01-10739. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 10, 2002. Filed June 11, 2003. 1 COPYRIGHT MATERIAL OMITTED Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant. 2 Ronald C. Rachow, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee. 3 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. 4 Before: KOZINSKI and KLEINFELD, Circuit Judges, and KARLTON, District Judge. 1 5 Opinion by Judge KARLTON; Opinion concurring in part and dissenting in part by Judge KLEINFELD. OPINION KARLTON, District Judge: 6 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. FACTS 7 In February 2000, the police in Sparks, Nevada, were investigating an incident involving a game of Russian roulette…