                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             SEP 24 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    18-50099

              Plaintiff-Appellee,                D.C. No.
                                                 2:17-cr-00592-JFW-1
 v.

WILLIAM JOHNSON,                                 MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                     Argued and Submitted September 12, 2019
                               Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

      Appellant-defendant William Johnson (Johnson) appeals his conviction for

possession of cocaine with intent to distribute, raising a variety of issues stemming

from law enforcement’s search of a package containing $64,920 in cash sent to an

apartment where Johnson periodically stayed. We have jurisdiction pursuant to 28



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1291. We review de novo the district court’s threshold determination that

Johnson lacked standing to assert that his Fourth Amendment rights were violated

when officers detained, and ultimately searched and seized, the package. See

United States v. Lopez-Cruz, 730 F.3d 803, 807 (9th Cir. 2013).

      To establish standing for purposes of challenging a search or seizure under

the Fourth Amendment, a defendant must demonstrate that he or she had a

reasonable expectation of privacy in the item being searched. See United States v.

Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010). “A reasonable expectation of

privacy exists where a person has exhibited an actual subjective expectation of

privacy, and the expectation is one that society is prepared to recognize as

reasonable.” Fazaga v. F.B.I., 916 F.3d 1202, 1219 (9th Cir. 2019) (citations,

alterations, and internal quotation marks omitted). Key to this appeal is the Fourth

Amendment maxim that the defendant have “exclusive use” of the place or thing

searched. United States v. SDI Future Health, Inc., 568 F.3d 684, 695-696 (9th

Cir. 2009), as amended; see also Schowengerdt v. United States, 944 F.2d 483, 487

(9th Cir. 1991).

      Applying these precepts, we conclude that the district court did not err when

it determined that Johnson lacked standing. As the district court noted, Johnson

was not the sender or the addressee of the package, his name was not on the lease


                                          2
for the apartment, and he did not state that he was expecting $64,000 in cash or that

the cash belonged to him. Actually, according to Johnson’s declaration, he was

expecting a package on January 6, not January 5, the day the package arrived. Nor

did he establish that he had exclusive rights to the package. Accordingly, Johnson

failed to establish a reasonable expectation of privacy in the package that society

would recognize as objectively reasonable and, therefore, lacked standing under

the Fourth Amendment to challenge the search and seizure of the package. See

United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005) (noting that “the

burden of proof is on the defendant to demonstrate that he has a reasonable

expectation of privacy”) (footnote reference and internal quotation marks

omitted).1

      AFFIRMED.




      1
          Because we hold that Johnson lacked standing, we need not and do not
address whether reasonable suspicion or probable cause existed to search and seize
the package. See Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d
1153, 1164 (9th Cir. 2002) (“Because we conclude that the Coalition lacks
standing, we decline to reach the remaining questions addressed by the district
court . . .”). Under any standard of review, the district court did not err by
considering the Angeo Declaration and the Frank Declaration because Federal Rule
of Evidence 104(a) permits the consideration of hearsay evidence in a suppression
hearing. See United States v. Matlock, 415 U.S. 164, 172-76 (1974).
                                          3
