                                                           [DO NOT PUBLISH]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.

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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.




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