United States v. Michael S. Siau , 281 F. App'x 949 ( 2008 )


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  •                                                            [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUNE 17, 2008
    No. 07-14358                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 07-00015-CR-5-001-RS
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MICHAEL S. SIAU,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (June 17, 2008)
    Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
    PER CURIAM:
    Michael Siau appeals the denial of his motion to suppress grenades that were
    seized during a warrantless search of his hunting stand.1 On appeal, Siau argues
    that: (1) the district court erred in denying his suppression motion, to the extent it
    was based on the search of his hunting stand, because he had a subjectively and
    objectively reasonable expectation of privacy in that stand; and (2) the district
    court erred in denying his suppression motion, to the extent it was based on the
    search of a wrapped, but unlocked, container holding the grenades, which was
    located in the hunting stand, since he had a reasonable expectation of privacy in
    that box.
    I.
    (Search of Hunting Stand)
    “We review a district court’s denial of a defendant’s motion to suppress
    under a mixed standard of review, examining the district court’s findings of fact
    for clear error and the district court’s application of law to those facts de novo.”
    United States v. King, 
    509 F.3d 1338
    , 1341 (11th Cir. 2007) (per curiam).
    The Fourth Amendment protects against unreasonable searches and seizures.
    See U.S. Const. amend. IV. The threshold question of whether the Fourth
    Amendment applies is whether “a person has a ‘constitutionally protected
    1
    After the district court denied his suppression motion, Siau agreed to plead guilty, with
    the benefit of a plea agreement, to (1) illegal possession of a destructive device (grenades), in
    violation of 
    26 U.S.C. §§ 5861
    (c), 5871 (“Count One”); and (2) illegal possession of a
    destructive device (grenades) without a serial number, in violation of 
    26 U.S.C. §§ 5861
    (i),
    5871 (“Count Four”). As part of the plea agreement, Siau expressly reserved the right to
    challenge on appeal the denial of his suppression motion.
    2
    reasonable expectation of privacy’” under the circumstances. California
    v. Ciraolo, 
    476 U.S. 207
    , 211, 
    106 S. Ct. 1809
    , 
    90 L. Ed. 2d 210
     (1986) (quoting
    Katz v. United States, 
    389 U.S. 347
    , 360, 
    88 S. Ct. 507
    , 516, 
    19 L. Ed. 2d 576
    (1967) (Harlan, J., concurring)).
    The party alleging an unconstitutional search “must establish both a
    subjective and an objective expectation of privacy. ‘The subjective component
    requires that a person exhibit an actual expectation of privacy, while the objective
    component requires that the privacy expectation be one that society is prepared to
    recognize as reasonable.’” United States v. Segura-Baltazar, 
    448 F.3d 1281
    , 1286
    (11th Cir. 2006) (citation omitted) (quoting United States v. Robinson, 
    62 F.3d 1325
    , 1328 (11th Cir. 1995)).
    Upon review of the record, and upon consideration of the briefs of the
    parties, we discern no reversible error with respect to the district court’s denial of
    Siau’s suppression motion, to the extent it was based on the search of the hunting
    stand. Even if Siau had a subjectively reasonable expectation of privacy in the
    hunting stand, the district court correctly found, as an alternative holding, that
    society would not be prepared to recognize as reasonable such a privacy
    expectation.
    The undisputed evidence showed that the stand was little more than a
    3
    wooden box located in the woods, with windows on three of the sides and a door
    on the fourth side, and while the stand was technically on private land, other
    hunters and non-invitees often entered the area. There was also no evidence that
    Siau used the stand for anything other than hunting-related activities or drinking
    coffee. Additionally, there was little evidence, if any, at the time of the search to
    suggest to any third party, who was not a member of the hunting club, that Siau
    attempted to restrict access to the stand or to the property on which his particular
    stand was located.
    In light of the foregoing, we conclude that the district court’s alternative
    holding that Siau did not have an objectively reasonable expectation of privacy in
    the hunting stand was correct. Accordingly, we affirm the district court’s denial of
    Siau’s suppression motion, to the extent it was based on the search of the hunting
    stand.
    II.
    (Search of the Box)
    As an initial matter, Siau does not challenge in his brief the search of the
    open milk crate in which the wrapped, but unlocked, container containing the
    grenades was located. Thus, he has abandoned the argument on appeal.
    See Dalrymple v. United States, 
    460 F.3d 1318
    , 1324 n.6 (11th Cir. 2006)
    (deeming abandoned an issue not raised in the appellants’ initial brief).
    4
    Upon review of the record, and upon consideration of the briefs of the
    parties, we discern no reversible error with respect to the denial of Siau’s
    suppression motion to the extent it was based on the search of the wrapped, but
    unlocked, container holding the grenades.2 As with the first issue we addressed,
    even if Siau had a subjectively reasonable expectation of privacy in the container
    holding the grenades, this expectation was not objectively reasonable. First, the
    box was located in an unlocked deer stand in the open outdoors, and that stand did
    not give rise to a privacy interest in which society was prepared to recognize as
    reasonable. Thus, any potential privacy expectation in the contents of the deer
    stand—which were located in plain view—was diminished significantly.
    Second, the bag in which the wrapped box was located and the box itself that
    contained the grenades were both unsecured, and there was no writing on the bag
    or wrapping to identify the owner of the property or to warn third parties to keep
    out. Only the word “Explosive!” appeared on the box.
    Third, the evidence showed that trespassers and children came onto the
    2
    We agree with Siau that meaningful appellate review is possible, notwithstanding the
    district court’s lack of findings regarding his expectation of privacy in the wrapped but unlocked
    box in which the grenades were discovered. The issue of whether a defendant, like Siau, had an
    objectively reasonable expectation of privacy is a question of law, and therefore is subject to de
    novo review. See, e.g., United States v. Stallings, 
    28 F.3d 58
    , 60 (8th Cir. 1994); United States
    v. Garzon, 
    119 F.3d 1446
    , 1449 (10th Cir. 1997). Because this is a legal question, and one that
    must be reviewed de novo, the district court’s lack of findings on this issue does not preclude
    meaningful appellate review.
    5
    hunting club property, and a government witness testified that “[t]hings go missing
    quite often” from hunting stands.
    In light of this evidence, society would not be willing to recognize as
    reasonable a privacy expectation in a wrapped box marked “Explosive!” in which
    grenades were located. We therefore affirm the district court’s denial of Siau’s
    suppression motion, to the extent it was based on the search of the wrapped, but
    unlocked, container holding the grenades.
    Accordingly, we affirm Siau’s convictions on Counts One and Four.
    AFFIRMED.
    6