United States v. Alvarez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2000
• Docket: 99-50864
• Status: Unpublished

Opinion

No. 99-50864 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50864 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ ANGEL ALVAREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-410-1-DB -------------------- April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

José Angel Alvarez was convicted in a bench trial of

conspiracy and possession of cocaine with the intent to

distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1).

Alvarez appeals the district court’s decision not to suppress the

evidence found in the vehicle parked in the driveway of the

residence. He contends that the vehicle was within the curtilage

of the dwelling and should be placed under the home’s umbrella of

Fourth Amendment protection.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50864 -2-

In reviewing the denial of a motion to suppress, the

district court’s findings of fact are accepted as true unless

clearly erroneous and its conclusions regarding the

constitutionality of law enforcement actions are reviewed de

novo. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.

1999), cert. denied, 120 S. Ct. 996 (2000).

The “curtilage” of a home is protected by the Fourth

Amendment from unconstitutional searches. United States v. Dunn,

480 U.S. 294, 300 (1987). A four-factor test is used to

determine if an area is within the curtilage: (1) the proximity

of the area to the home, (2) whether it is within an enclosure

surrounding the home, (3) the nature of the uses to which the

area is put, and (4) the steps taken by the resident to protect

the area from outside observation. United States v. Thomas, 120

F.3d 564, 571 (5th Cir. 1997).

The district court’s finding that the driveway is not within

the curtilage of the home is not clearly erroneous. The driveway

is an area open to the plain view of anyone passing on the

street. It is open to anyone who wants to use the driveway

because it is not surrounded by a fence. Alvarez evidently did

not take any steps to protect the privacy of the driveway and,

therefore, could not have had a reasonable expectation of privacy

in the area. This holding is consistent with those of other

circuits. See, e.g., United States v. McIver, 186 F.3d 1119,

1126 (9th Cir. 1999), cert. denied, 120 S. Ct. 1210 (2000);

United States v. Penny, 837 F.2d 595, 597 (2d Cir. 1988).

Accordingly, the judgement of the district court is AFFIRMED. No. 99-50864 -3-

AFFIRMED.