Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1990)

MEMORANDUM

Epps appeals his conviction of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. He entered a conditional plea of guilty, reserving his contention that the district court erred in failing to suppress evidence discovered during a warrantless search. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Epps challenges the constitutionality of a search conducted by a Drug Enforcement Administration agent of a hotel room rented to Moore, an associate of Epps. The district court concluded that Epps lacked standing to assert a fourth amendment violation.

We review the question of standing de novo. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986). When facts are contested, " [w]e uphold the district court's findings of fact at a suppression hearing unless they are clearly erroneous." Id.

To have standing to raise a fourth amendment claim, a person must demonstrate "a legitimate expectation of privacy in the area searched." United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.) (Grandstaff), cert. denied, 484 U.S. 837 (1987), quoting United States v. Salvucci, 448 U.S. 83, 95 (1980). "Although a guest who stays overnight and keeps personal belongings in the residence of another might have a reasonable expectation of privacy ... mere presence in the hotel room of another is not enough." Grandstaff, 813 F.2d at 1357 (citations omitted). The burden of establishing a legitimate expectation of privacy is on the person seeking to suppress the evidence. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

Epps asserts that he has standing because he left some of his belongings in the room, had a key, and intended to return to the room and spend the night. Although Epps testified that he intended to return, the district judge specifically found this testimony to be "unbelievable." We cannot say that this finding was clearly erroneous. Further, the record demonstrates only that some clothing was stored in the room. It is unclear whether it was Epps's clothing, and whether Epps himself placed it there. Although the district court made no specific finding in this regard, it is implicit in its decision. It is clear that Epps has failed to carry his burden of proving this point.

With the district court's assessment of credibility, Epps has shown only that he was given the key to the room by Moore, and that he used the room for the limited purpose of collecting the hidden drugs. That assessment of the facts is not clearly erroneous. This establishes a more tenuous connection with the room than was shown by the defendant in Grandstaff, who was present in the room at the time of the warrantless entry. See 813 F.2d at 1354. As in Grandstaff, we agree with the district court that Epps has failed to carry his burden of establishing a legitimate expectation of privacy. Epps therefore lacks standing to challenge the constitutionality of the search.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.