1 □ 2 JS-( 3 4 5 6 7 Qnited States District Court 8 , , , , Central District Of California 9 ver ge Western Division 10 11 12 UNITED STATES OF AMERICA CASE NO. 13 Plaintiff, 2:19CV-04025-ODW 14 2:19CV-04028-ODW V. 2:12CR-01016-ODW-1 15 2:12CR-01016-ODW-2 TAC TRAN and HARSON CHONG 16 ORDER DENYING MOTION TO Defendants. VACATE, SET ASIDE OR CORRECT 17 SENTENCE UNDER 28 U.S.C. § 2255 18 19 20 |. INTRODUCTION 21 On December 4, 2014 Tac Tran and Harson Chong, co-defendants in case □□□□ 22 15CR-01016, were found guilty following a jury trial of trafficking in controlle 2311 substances and possession of firearms in furtherance of drug trafficking crimes. [DI 24 135]. They were sentenced to a total of 420 months and 180 months respectively. □□□ 25 178, 163.] On December 3, 2017 the judgments were affirmed on the consolidate 26 appeals. (DE-203). On May 2, 2019 Tran and Chong filed a Notice of Motion ar 2711 Motion to Vacate, Set Aside Sentence by a Person in Federal Custody Pursuant to □ 2811 U.S.C. § 2255. [DE-207 & 209.]
1 The thrust of the 2255 motions is that respective counsel for each □□□□□□□□ 2 || failed to argue in the suppression motion: (1) on behalf of Chong, that one of the office 3 || was standing in the curtilage of Chong’s home when he observed drug related activit 4|| thus violating his 4" Amendment rights. (2) on behalf of Tran, it is argued that h 5 || attorney did not argue aggressively enough that Tran had standing to raise the same 4 6 || Amendment argument regarding the driveway of the residence as being curtilage of tk home. Tran was in something of a Catch-22 in arguing standing to raise an argument ¢ 8 || an expectation of privacy in someone else’s (Chong’s) residence without as the sarr time risking that the contraband found in various rooms of the house would & attributed to him. Initially law enforcement was of the view that Tran was living at tr 11 | location because he was observed arriving at the location around 9:00 p.m. ar 12 | appeared to let himself in with a key. 13 Later, Tran filed a motion to suppress citing United States v. Grandberry, 730 Fe 1411 3q 968 (9"" Cir. 2013) challenging the “parole sweep” search. The curtilage argment we 13 1 not made in the trial court and therefore was not entertained on appeal. The argument, on behalf of both Chung and Tran, is that the curtilage issue he sufficient merit and the legal basis was sufficiently sound that it was “below an objectiv 8 standard of reasonableness” and “there is a reasonable probability that, but fc ” counsel’s unprofessional errors, the result of the proceeding would have bee 20 different.” (Strickland v. Washington, 466 U.S. 668, 697 (1984). The Court disagrees. | fact, the Court will dispose of this motion without the need to address Strickland. Sinc this entire motion rests on whether the driveway was curtilage and therefore entitle to 4" Amendment protection, resolution of that single question will be dispositive « “ these motions. 25 6 A. SALIENT FACTS 27 Law enforcement was surveilling a residence located at 2514 Abonado Place, : 98 | Rowland Heights where Chong resided and where it was believed that Tran may ha been staying. While watching the residence, Tran was seen arriving on a motorcycle.
1 || appeared that he let himself into the front door apparently by using a key. Chor || disputes that Tran used a key to enter the residence. Officers climbed a low wa 3 || Separating the Chong residence from the house next door. One officer standing in th driveway of the house, looking into the open garage door, observed Tran, now inside tk 5 || garage, holding a baggie containing a white crystalline substance which the offic 6 || believed to be methamphetamine. When Tran saw that he was being observed, he toss¢ 7 || the baggie onto a coffee table. (L.A. Sheriff's Dept narrative report # 912-04874-293: g |} 151, DE-29-2) In the suppression motions no mention was made of the fact that one « g || the officers in the driveway constituted impermissible presence in the home’s curtilas 19 || and therefore under □□ Amendment protection. The arguments both focused on tl 11 | Propriety of the parole compliance search. 12 B. CURTILAGE DEFINED 13 As can be seen from the photographs taken of the front of the residence from tt 14 street, (12-cr-1016, DE-79-15) it appears that the driveway leading to the two-car garag IST is barely 1-1/2 car lengths. The interior of the garage is visible from the sidewalk whe 161 the overhead garage door is open. In United States vs. Dunn, the Supreme Court reaffirmed its holding in Oliver 8 United States, 466 U.S. 170, 104 S.Ct. 1735 (1984). There, the Court recognized that tl Fourth Amendment protects the curtilage of a house and that the extent of the curtilas is determined by factors that bear upon whether an individual reasonably may expect th. a the area in question should be treated as the home itself. 466 U.S., at 180, 104 S.Ct., | 1742. In Oliver the Court identified “the central component of this inquiry as whether tl °° area harbors the ‘intimate activity associated with the sanctity of a man's home and tl privacies of life.’ ” Ibid. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 52: 532, 29 L.Ed. 746 (1886)). “Drawing upon the Court's own cases and the cumulative experience of the low 3g courts that have grappled with the task of defining the extent of a home's curtilage, v
1|| believe that curtilage questions should be resolved with particular reference to fot factors: the proximity of the area claimed to be curtilage to the home, whether the are 3 || is included within an enclosure surrounding the home, the nature of the uses to which tl area is put, and the steps taken by the resident to protect the area from observation t 5 || people passing by. See California v. Ciraolo, 476 U.S. 207, 221, 106 S.Ct. 1809, 181 6 || 90 L.Ed.2d 210 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2 22, 25 (CA10), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956); Unite 8 || States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). We do not suggest th. 9 || combining these factors produces a finely tuned formula that, when mechanically applie yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these factors ai useful analytical tools only to the degree that, in any given case, they bear upon tl 12 || centrally relevant consideration—whether the area in question is so intimately tied to tl 13 | home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendme: protection.” Dunn, 104 S.Ct at 1140. 15 Applying those factors here, it is beyond serious debate that there was r 16 expectation of privacy with respect to the interior of the garage or the driveway leadir 171 to the garage, when the garage doors were open. There was no effort to shield either tl 18 driveway or the garage from view of passers-by or for that matter, motorists. The aré 19! could not be more open to public view. Indeed, as can be seen from Document 79-15 - 201! case 12-cr-101 6, the entire front of the house, not just the driveway, was paved. It wou 21 appear that the area was used to park vehicles.
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1 □ 2 JS-( 3 4 5 6 7 Qnited States District Court 8 , , , , Central District Of California 9 ver ge Western Division 10 11 12 UNITED STATES OF AMERICA CASE NO. 13 Plaintiff, 2:19CV-04025-ODW 14 2:19CV-04028-ODW V. 2:12CR-01016-ODW-1 15 2:12CR-01016-ODW-2 TAC TRAN and HARSON CHONG 16 ORDER DENYING MOTION TO Defendants. VACATE, SET ASIDE OR CORRECT 17 SENTENCE UNDER 28 U.S.C. § 2255 18 19 20 |. INTRODUCTION 21 On December 4, 2014 Tac Tran and Harson Chong, co-defendants in case □□□□ 22 15CR-01016, were found guilty following a jury trial of trafficking in controlle 2311 substances and possession of firearms in furtherance of drug trafficking crimes. [DI 24 135]. They were sentenced to a total of 420 months and 180 months respectively. □□□ 25 178, 163.] On December 3, 2017 the judgments were affirmed on the consolidate 26 appeals. (DE-203). On May 2, 2019 Tran and Chong filed a Notice of Motion ar 2711 Motion to Vacate, Set Aside Sentence by a Person in Federal Custody Pursuant to □ 2811 U.S.C. § 2255. [DE-207 & 209.]
1 The thrust of the 2255 motions is that respective counsel for each □□□□□□□□ 2 || failed to argue in the suppression motion: (1) on behalf of Chong, that one of the office 3 || was standing in the curtilage of Chong’s home when he observed drug related activit 4|| thus violating his 4" Amendment rights. (2) on behalf of Tran, it is argued that h 5 || attorney did not argue aggressively enough that Tran had standing to raise the same 4 6 || Amendment argument regarding the driveway of the residence as being curtilage of tk home. Tran was in something of a Catch-22 in arguing standing to raise an argument ¢ 8 || an expectation of privacy in someone else’s (Chong’s) residence without as the sarr time risking that the contraband found in various rooms of the house would & attributed to him. Initially law enforcement was of the view that Tran was living at tr 11 | location because he was observed arriving at the location around 9:00 p.m. ar 12 | appeared to let himself in with a key. 13 Later, Tran filed a motion to suppress citing United States v. Grandberry, 730 Fe 1411 3q 968 (9"" Cir. 2013) challenging the “parole sweep” search. The curtilage argment we 13 1 not made in the trial court and therefore was not entertained on appeal. The argument, on behalf of both Chung and Tran, is that the curtilage issue he sufficient merit and the legal basis was sufficiently sound that it was “below an objectiv 8 standard of reasonableness” and “there is a reasonable probability that, but fc ” counsel’s unprofessional errors, the result of the proceeding would have bee 20 different.” (Strickland v. Washington, 466 U.S. 668, 697 (1984). The Court disagrees. | fact, the Court will dispose of this motion without the need to address Strickland. Sinc this entire motion rests on whether the driveway was curtilage and therefore entitle to 4" Amendment protection, resolution of that single question will be dispositive « “ these motions. 25 6 A. SALIENT FACTS 27 Law enforcement was surveilling a residence located at 2514 Abonado Place, : 98 | Rowland Heights where Chong resided and where it was believed that Tran may ha been staying. While watching the residence, Tran was seen arriving on a motorcycle.
1 || appeared that he let himself into the front door apparently by using a key. Chor || disputes that Tran used a key to enter the residence. Officers climbed a low wa 3 || Separating the Chong residence from the house next door. One officer standing in th driveway of the house, looking into the open garage door, observed Tran, now inside tk 5 || garage, holding a baggie containing a white crystalline substance which the offic 6 || believed to be methamphetamine. When Tran saw that he was being observed, he toss¢ 7 || the baggie onto a coffee table. (L.A. Sheriff's Dept narrative report # 912-04874-293: g |} 151, DE-29-2) In the suppression motions no mention was made of the fact that one « g || the officers in the driveway constituted impermissible presence in the home’s curtilas 19 || and therefore under □□ Amendment protection. The arguments both focused on tl 11 | Propriety of the parole compliance search. 12 B. CURTILAGE DEFINED 13 As can be seen from the photographs taken of the front of the residence from tt 14 street, (12-cr-1016, DE-79-15) it appears that the driveway leading to the two-car garag IST is barely 1-1/2 car lengths. The interior of the garage is visible from the sidewalk whe 161 the overhead garage door is open. In United States vs. Dunn, the Supreme Court reaffirmed its holding in Oliver 8 United States, 466 U.S. 170, 104 S.Ct. 1735 (1984). There, the Court recognized that tl Fourth Amendment protects the curtilage of a house and that the extent of the curtilas is determined by factors that bear upon whether an individual reasonably may expect th. a the area in question should be treated as the home itself. 466 U.S., at 180, 104 S.Ct., | 1742. In Oliver the Court identified “the central component of this inquiry as whether tl °° area harbors the ‘intimate activity associated with the sanctity of a man's home and tl privacies of life.’ ” Ibid. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 52: 532, 29 L.Ed. 746 (1886)). “Drawing upon the Court's own cases and the cumulative experience of the low 3g courts that have grappled with the task of defining the extent of a home's curtilage, v
1|| believe that curtilage questions should be resolved with particular reference to fot factors: the proximity of the area claimed to be curtilage to the home, whether the are 3 || is included within an enclosure surrounding the home, the nature of the uses to which tl area is put, and the steps taken by the resident to protect the area from observation t 5 || people passing by. See California v. Ciraolo, 476 U.S. 207, 221, 106 S.Ct. 1809, 181 6 || 90 L.Ed.2d 210 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2 22, 25 (CA10), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956); Unite 8 || States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). We do not suggest th. 9 || combining these factors produces a finely tuned formula that, when mechanically applie yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these factors ai useful analytical tools only to the degree that, in any given case, they bear upon tl 12 || centrally relevant consideration—whether the area in question is so intimately tied to tl 13 | home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendme: protection.” Dunn, 104 S.Ct at 1140. 15 Applying those factors here, it is beyond serious debate that there was r 16 expectation of privacy with respect to the interior of the garage or the driveway leadir 171 to the garage, when the garage doors were open. There was no effort to shield either tl 18 driveway or the garage from view of passers-by or for that matter, motorists. The aré 19! could not be more open to public view. Indeed, as can be seen from Document 79-15 - 201! case 12-cr-101 6, the entire front of the house, not just the driveway, was paved. It wou 21 appear that the area was used to park vehicles. It also appears that a portion of the are 22! which could be characterized as “driveway” was also used as access to the front doo 231 There is no fencing to limit access from the sidewalk to the property known as 251] 241 Abonado Place. See also DE-6-2 filed in Case 19-CV-4025, the government’s oppositic 251 to the instant motion. It is difficult to imagine a way in which the area in question cou 26! be made more open to public view than it already is. Absolutely no steps were taken t 271 the homeowner to shield the area from public view. While the Supreme Court cautio1 28 against establishing a check-list to determine the extent of curtilage, here no check li
1] or formula is required. By any reasonable measurement, the area of and adjacent to th driveway are not within the ambit of constitutional protection afforded 3} residential structures and could not reasonably be expected to fall within 4" Amendme: 4 protection. This is not a close question and to argue that an attorney was remiss in n 5 arguing that the area is entitled to protection as curtilage to the residence has no mer whatever. ’ Il. CONCLUSION A defense attorney cannot be criticized for his forbearance in making a speciot 10 argument. It is not required that an attorney argue every conceivable issue on appea especially when some may be without merit. Indeed, it is his professional duty to choos | among potential issues, according to his judgment as to their merit and his tactic 3 approach. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983). Consequentl 14 defense counsel, in their professional judgment, viewed the more promising issv 5 supporting suppression as the parole compliance sweep. That was a reasonable judgmen 6 The curtilage argument, under the circumstances, had no merit whatsoever. Therefor Chong’s attorney was not remiss in not raising it and Tran’s attorney cannot be criticize 18 for not aggressively arguing his standing to chase that loser down a rabbit hole. Had the 19 each done what they are now being criticized for not having done, the outcome woul have been the same. The Motions to Vacate, Set Aside or Correct the sentences of bo: Tac Tran and Harson Chong are therefore DENIED. 22 23 | IT IS SO ORDERED. 24 ~ DATE: October 08, 2019 wr 25 eg yy OTIS D. WRIGHT, I UNITED STATES DISTRICT JUDGE 28