                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 24 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10434

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00286-CRB-1

  v.
                                                 MEMORANDUM*
FLEURETTE ALLEN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                         Submitted September 11, 2013**
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      Defendant Fleurette Allen was convicted of unlawfully possessing a firearm

in violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s denial of his

motion to suppress evidence obtained during an allegedly unlawful search. We

affirm.

      “We review the district court’s denial of [a] motion to suppress de novo and

the district court’s underlying factual findings for clear error.” United States v.

Giberson, 527 F.3d 882, 886 (9th Cir. 2008).

      To establish the illegality of a search under the Fourth Amendment, a

defendant must show that he had a “legitimate expectation of privacy” in the place

or item searched. United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000). To do

so, “he must demonstrate a subjective expectation that his activities would be

private, and he must show that his expectation was one that society is prepared to

recognize as reasonable.” Id. (internal quotation marks and citations omitted).

“However, that expectation of privacy does not extend to ‘[w]hat a person

knowingly exposes to the public, even in his own home or office.’” United States

v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (quoting Katz v. United States,

389 U.S. 347, 351 (1967)) (alteration in original). Assuming that Allen had a

Fourth Amendment privacy interest in items he had in his girlfriend’s apartment,

Allen forfeited his privacy interest: he twice asked a construction worker, Ortega,


                                           2
to go into the apartment specifically to recover one item, his gun. By so doing,

Allen knowingly exposed the apartment to the public and expressly disavowed any

expectation of privacy that he might have had as an overnight guest or fire victim.

Therefore, the district court correctly denied Allen’s motion to suppress.

      AFFIRMED.




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