Opinion
Case No. 2:04-CR-136 DB.
October 29, 2004
REPORT RECOMMENDATION
Defendant filed a Motion to Suppress Evidence (Dkt. # 20) seeking suppression of all evidence seized from Defendant's vehicle on October 22, 2002, following a warrantless search. The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). On August 5, 2004, the Magistrate Judge heard oral argument on the motion with Stephen R. McCaughey appearing for Defendant, and Richard McKelvie appearing for the Government. Following the hearing, the parties submitted additional briefing which was complete on September 30, 2004.
I. FACTS
Detective Rudy Chacon of the Salt Lake County Sheriff's Office testified concerning the events at issue. On October 22, 2002, Detective Chacon was assisting the Utah Department of Adult Probation and Parole in the arrest of Defendant's wife, Kara Echeverria. (Tr. 5.) Ms. Echeverria, who was on state probation at the time, was under investigation for drug trafficking. (Tr. 5-6.) A search of Ms. Echeverria and her belongings produced drugs, a firearm, and some currency. (Tr. 6.)
Because Detective Chacon had information that Ms. Echeverria was involved in drug trafficking, he conducted an interview with her which took place behind the house where she was arrested. (Tr. 6-7.) In the course of the interview, Ms. Echeverria acknowledged that the items found during the search belonged to her. In addition, she advised Detective Chacon that her husband, Defendant Echeverria, also had drugs and a firearm, and that he carried them in his vehicle. As to the type of drugs, Detective Chacon stated that she mentioned cocaine and methamphetamine. (Tr. 7.)
Ms. Echeverria gave the officers the address where she was living, and indicated that her husband would be there, as well as the vehicle. She specifically stated that Defendant did not keep the drugs and gun in the house; and that he kept them in the car, because she would not let him keep them in the house. (Tr. 8.) Ms. Echeverria described the vehicle as a silver or gray Honda Civic. (Tr. 8-9.)
Detective Chacon left within fifteen minutes to go to the address provided by Ms. Echeverria. In the meantime, other officers had already responded to that location to set up surveillance. (Tr. 9.) When Detective Chacon arrived, the officers attempted to contact the residents of the house by knocking on the door, but there was no answer. (Tr. 9-10.) The officers noticed that a side door was open. They knocked on that door, yelled inside, and identified themselves as police officers, but still there was no response. (Tr. 10.)
A silver Honda Civic was sitting on a cement driveway in the backyard. Detective Chacon walked around the car, and peered through the back window. On the driver's side, he could see the barrel of a gun underneath a jacket. Based on that observation, and the information received from Ms. Echeverria, Detective Chacon then conducted a search of the vehicle in which he found cocaine, methamphetamine, a firearm, and $6,888 in cash. (Tr. 10.)
Prior to searching the car, Detective Chacon did not run a registration check on the car, did not obtain a warrant, and did not obtain consent to search the car. (Tr. 18.) At the time of the search, five police officers were present at the residence. (Tr. 18-19.) On cross-examination, Detective Chacon acknowledged that some of the officers could have stayed with the car while others went to get a warrant. He also conceded that he had a telephone with him, and could have attempted to obtain a warrant telephonically. (Tr. 19.) He also acknowledged that it was not illegal to possess the firearm or carry it in the car with no rounds in the chamber. (Tr. 14, 15.)
II. DISCUSSION
A. Automobile Exception to the Warrant Requirement
Warrantless searches "are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). In the instant case, the Government contends that the warrantless search of Defendant's car was justified under the "automobile exception" to the warrant requirement first announced in Carroll v. United States, 267 U.S. 132 (1925). Under the Carroll doctrine, police may search an automobile without a warrant if they have probable cause to believe that it contains contraband. Id. at 156. The rationale in Carroll was based on the "necessary difference" between the search of a store, house, or other structure for which a search warrant would be readily obtainable and the search of a ship, wagon, or automobile "where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at 153. Thus, under Carroll, two elements were required for the warrantless search of an automobile: (1) probable cause that it contained contraband or evidence of a crime, and (2) exigent circumstances in that the vehicle could be moved before a warrant was obtained.
Defendant contends that the automobile exception does not apply to the instant case because the second Carroll element, exigent circumstances, is not satisfied. Defendant relies upon Coolidge v. New Hampshire, 403 U.S. 443 (1971), in which a plurality of the Supreme Court held unlawful a warrantless search of the defendant's car which was parked in his driveway. The defendant had already been arrested, and there was little chance of anyone moving the car while the police obtained a warrant. The Supreme Court noted that "`exigent circumstances' justify the warrantless search of `an automobile stopped on the highway,' where there is probable cause, because the car is `movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.' `[T]he opportunity to search is fleeting.'" Id. at 460 (emphasis and alterations in original) (quoting Chambers v. Maroney, 399 U.S. 42, 51 (1970).
The Coolidge Court stated that under the facts of that case, the opportunity for the search was hardly "fleeting." Coolidge, 403 U.S. at 460. The defendant had been arrested, and could not conceivably have gained access to the automobile. His wife had been taken by police to the home of a relative in another town to spend the night, and had been told that she could not use either of the Coolidge cars. Further, the defendant's residence was guarded throughout the night by two policemen. Id. at 460-61. The Court stated:
The word "automobile" is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where "it is not practicable to secure a warrant," and the "automobile exception," despite its label, is simply irrelevant.Coolidge, 403 U.S. at 461-62 (citations omitted). The Court concluded that although the police had probable cause for the search, there were no exigent circumstances that justified them in proceeding without a warrant. Thus, the search was illegal.Id. at 464.
The facts of the instant case are similar to Coolidge, in that no exigent circumstances existed at the time of the search. Defendant's car was parked behind his house, so there was no immediate need to move it for public safety reasons, as there might have been if it had been stopped on a public roadway. Defendant's wife was in custody, so there was no danger of her moving the car or its contents. Further, Detective Chacon admitted that several officers were present at the time of the search so that they could have kept anyone from disturbing the car or its contents while he obtained a search warrant. He further conceded that he was familiar with the procedure for obtaining a telephonic warrant, and he had a telephone at his disposal.
However, other Supreme Court cases decided both before and after Coolidge have cast doubt on the necessity of exigent circumstances with regard to the automobile exception. As the case law has evolved, a showing of probable cause alone is sufficient to justify the search of an automobile without a warrant.
In Chambers v. Maroney, 399 U.S. 42 (1970), decided the year before Coolidge, the Supreme Court upheld the warrantless search of a car after it had been driven to the police station following the arrest of its occupants for the robbery of a gas station. The court noted that probable cause existed to search the car for guns and money at the time the car was stopped. Id. at 47-48. The Court stated that in such a case, either the search of the car must be made immediately without a warrant, or the car must be seized and held until a warrant can be obtained. Id. at 51. The Court thought it debatable whether holding the car while a search warrant was obtained was a lesser intrusion than simply searching the car at once. Id. at 51-52. The Court stated:
For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.Id. at 52.
The Court noted that the police could have searched the car on the spot because there was probable cause to search and the car was a fleeting target for a search. Probable cause to search still existed at the station house, and
so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.Id.
In California v. Carney, 471 U.S. 386 (1985), the Supreme Court upheld the warrantless search of a motor home parked in a parking lot. The Court noted that although "ready mobility," was perhaps the original justification for the automobile exception, later cases made clear that it was not the only basis for the exception. The Court stated that the reasons for the exception are twofold: "Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Id. at 391 (quoting South Dakota v. Opperman, 428 U.S. 364, 367 (1976).
Subsequently, in Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam), the state court had held that the automobile exception was limited to cases in which "unforeseen circumstances" were coupled with probable cause. The Supreme Court stated that this was "incorrect." Id. The Supreme Court acknowledged that its first automobile exception cases "were based on the automobile's `ready mobility,' an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear." Id. The Court noted, however, that its more recent cases had provided a further justification: "the individual's reduced expectation of privacy in an automobile, owing to its pervasive regulation." Id. In upholding the warrantless search, the Court stated: "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." Id.
Finally, in Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam), the Court explicitly held that under established precedent, "the `automobile exception' has no separate exigency requirement." Id. at 466. The Court stated that a finding of probable cause alone "satisfies the automobile exception to the Fourth Amendment's warrant requirement." Id. at 467.
Defendant argues, however, that because five officers were surrounding the vehicle and the residence before the search was conducted, the mobility of the vehicle had been nullified, essentially rendering any argument premised on the concern for the inherent mobility of a vehicle a legal nullity. Defendant notes that if the officers had probable cause to search the vehicle, they could have attempted to obtain a warrant. However, the Tenth Circuit rejected the argument that lack of ready mobility precludes application of the automobile exception inUnited States v. Mercado, 307 F.3d 1226 (10th Cir. 2002). In that case, the automobile at issue was inoperable and had been towed to a repair shop. In considering the legality of a warrantless search, the Tenth Circuit noted that "courts have not focused on factual controversies regarding the degree to which a vehicle is or is not readily mobile, or whether its mobility has been or could be obstructed by the police." Id. at 1229. The court also rejected the defendant's argument that the officer should have obtained a telephonic warrant since he knew how to do so. The court stated that "in cases involving automobiles when probable cause exists, `the agents' time and opportunity to obtain a warrant are irrelevant.'" Id. at 1231 (quoting United States v. Crabb, 952 F.2d 1245, 1246 (10th Cir. 1991). See also United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002) (stating that under the automobile exception, the justification for searching does not vanish simply because the vehicle has been immobilized, and does not require a showing that the car might have been driven away, or the evidence tampered with during the time it would have taken to obtain a warrant).
Finally, in United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993), the defendant, whose car had been searched in a motel parking lot, argued that the search was unreasonable underCoolidge. The Tenth Circuit distinguished Coolidge on the grounds that Coolidge had already been arrested prior to the search, while Ludwig had not. Thus, unlike Coolidge, Ludwig could have driven off before police obtained a search warrant. The court stated that the warrantless search of the car was not unreasonable, even if there was little or no risk that Ludwig would come out of the motel and drive away. The court stated: "If police have probable cause to search a car, they need not get a search warrant first even if they have time and opportunity."Id. at 1528. The instant case is similarly distinguishable fromCoolidge in that Defendant had not been arrested prior to the search. Accordingly, the court concludes that the automobile exception applies in this case to allow a warrantless search of the car, assuming the existence of probable cause.
B. Probable Cause
1. Legal Standard for Information Provided by Informant
Defendant argues that the officers did not have probable cause to search the car. Probable cause to search an automobile exists if, under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence of a crime. United States v. Vasquez-Castillo, 258 F.3d 1207, 1212 (10th Cir. 2001); United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998).
In determining whether information received from an informant provides probable cause, courts formerly applied theAguilar-Spinelli test named for the cases from which it was developed. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). In Aguilar, the Supreme Court considered the validity of a search warrant in which the underlying affidavit stated that the officers "have received reliable information from a credible person and do believe" that the defendant has drugs in his house. Aguilar, 378 U.S. at 109. The Supreme Court stated that while hearsay information may provide a basis for a finding of probable cause, the information must include
some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," or, as in this case, by an unidentified informant.Id. at 114-15 (citations omitted). The Court concluded that the affidavit did not provide a sufficient basis for a finding of probable cause. Id. at 115.
The Supreme Court granted certiorari in Spinelli to further explain the principles of Aguilar. Spinelli, 393 U.S. at 412. In that case, the Court referred to "Aguilar's two-pronged test" which required a showing (1) of the underlying circumstances necessary for a judicial officer to independently judge the validity of the informant's conclusion, e.g., that narcotics were where he said they would be (basis of knowledge prong) and (2) that he was credible or his information reliable (veracity prong). See Spinelli, 393 U.S. at 413.
In Spinelli, the Court considered the sufficiency of an affidavit in support of a search warrant which contained the report of a confidential informant and a report of an independent FBI investigation that was said to corroborate the informant's tip. Spinelli, 393 U.S. at 413. Spinelli had been convicted of traveling in interstate commerce with the intention of conducting gambling activities. Id. at 411. The affidavit stated that the FBI had observed Spinelli crossing a bridge between Illinois and Missouri on four occasions, and that he had parked his car in a parking lot of a particular apartment building. On one occasion, he was seen entering an apartment in the building. A check of telephone records showed that the apartment contained two telephones listed under the name of another person. The affidavit further stated that Spinelli was known to federal law enforcement officers as a bookmaker and gambler. Finally, it stated that the FBI had been informed by a "confidential reliable informant" that Spinelli was conducting a bookmaking operation out of the apartment. Id. at 413-14.
The Court noted that the informant's tip was necessary because, without it, probable cause could not be established. The other information concerning Spinelli's travels, his entry into the apartment building, and the fact that the apartment contained two phones reflected only innocent-seeming activity. Id. at 414. Further, the agent's statement that Spinelli was known as a gambler was "but a bald and unilluminating assertion of suspicion that is entitled to no weight." Id.
This portion of the Spinelli holding has since been called into question. See United States v. Harris, 403 U.S. 573 (1971).
The Government argued that the informant's tip gave a suspicious color to the FBI's report describing the otherwise innocent activity, and that in turn, the FBI's surveillance corroborated the tip, thereby entitling it to more weight. The Supreme Court stated, however, that where the informant's tip was a necessary element in determining probable cause, its proper weight must be determined by a more precise analysis. First, its probative value must be assessed under the standards ofAguilar. If the tip is deemed inadequate under Aguilar, the corroborating information should then be considered. Id. at 415.
Applying these principles, the Court found that the informant's tip did not satisfy either prong of Aguilar. The Court noted that although the affiant swore that the informant was "reliable," he offered no reasons in support of that conclusion.Id. at 416. Further, the other prong of Aguilar was not satisfied because the tip did not contain a "sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation." Id. The Court concluded that "the informant's tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause." Id. at 418.
Subsequently, in Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court stated that it was abandoning theAguilar-Spinelli rule in favor of a "totality of the circumstances" approach. Id. at 238. The Court observed that the two prongs of Aguilar-Spinelli direct the analysis into two independent channels — the informant's "veracity" or "reliability" and his "basis of knowledge." Gates, 462 U.S. at 233. The Court noted that there were persuasive arguments against giving these two elements such independent status. Id.
Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.Id.
As an example, the Court stated that if an informant was known to be unusually reliable, his failure to provide the basis for his knowledge in a particular case should not be an absolute bar to a finding of probable cause based on his tip. Id. Similarly, if an unquestionably honest citizen provided information that, if fabricated, would subject him to criminal prosecution, rigorous scrutiny of the basis of his knowledge might be unnecessary.Id. at 233-34. Conversely, even if there is some doubt as to the informant's motivation, "his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case." Id. at 234. The court stated that the task of the judicial officer in issuing a search warrant
is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and the `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.Id. at 238.
Finally, the Court noted that its decisions applying the "totality-of the-circumstances" analysis have consistently recognized the value of corroboration of the details of an informant's tip by independent police work. Id. at 241. When the police are able to verify parts of the information, they have "reasonable grounds" to believe that other unverified bits of information are likewise true. Id. at 243.
2. Application of the Totality-of-the-Circumstances Approach
Based on Gates, the court applies the totality-of-the-circumstances analysis to Ms. Echeverria's tip, using the Aguilar-Spinelli elements as relevant considerations, and recognizing any corroboration by independent police work. Under this analysis, it is clear that Ms. Echeverria, as Defendant's wife, had a basis for knowing what her husband carried in his car. Thus, the "basis of knowledge" prong of theAguilar-Spinelli test is satisfied.
Defendant argues, however, that the reliability or credibility prong is not satisfied as there was no showing of Ms. Echeverria's veracity. Defendant points out that there is nothing to suggest that Ms. Echeverria had previously provided reliable information to Detective Chacon, or that he had any reason to believe her to be a trustworthy informant. Defendant further urges the court to consider the possible motivation of the informant, in that she might have been trying to remove the taint of criminal activity from herself so that her probation officer would not think that she had committed a violation. Defendant states that her tip should be viewed in the light that she might have simply wanted to exculpate herself or believed that providing the information might help her.
The Government concedes that Detective Chacon had never dealt with Ms. Echeverria before, and she therefore had no "track record" of reliability with him. The Government argues, however, that were substantial reasons to accept her information as true. It states that there was no indication that Mr. and Mrs. Echeverria were estranged. In the Government's view, Ms Echeverria would have no motive to falsely implicate her husband in criminal activity. Indeed, there would be no motive for her to speak falsely of him at all, unless it would be to exculpate him or to deny that he was involved. The Government argues that Ms Echeverria described the vehicle and residence with great particularity, and there was no reason for Detective Chacon, or for a magistrate, to question her credibility or motive.
The Government further argues that Ms. Echeverria's statements were substantially corroborated before the search occurred. Detective Chacon went to the residence described by Ms. Echeverria, and found the vehicle which exactly matched the description she had given of the automobile. When Detective Chacon looked inside the vehicle, he immediately saw the barrel of the gun that Ms. Echeverria said would be there. The Government contends that based on the information Detective Chacon had received, and his own observations, it was reasonable for him to conclude that drugs would be found in the car as Ms. Echeverria had indicated. The Government concedes that the observation of the firearm did not disclose any violation of the law. However, it did confirm that Ms. Echeverria's information was accurate in every respect that could be verified before the search. The Government argues that because the location of the vehicle, the description of the vehicle, and the firearm were all described in accurate detail, Detective Chacon had probable cause to search the vehicle.
The question of whether probable cause existed for Detective Chacon's search is a close one. As discussed, Ms. Echeverria, as Defendant's wife, clearly had a basis for her knowledge. However, regarding her credibility or reliability, Detective Chacon had no prior relationship with her and had no evidence to suggest that she was credible. Although the Government contends that she would have no reason to give false information against her husband, no evidence was offered on this issue, and it is mere speculation. It is just as likely, as Defendant argues, that she might provide false information in order to exculpate herself or to gain some favor with her probation officer, especially since she was under arrest at the time she gave the information. At least one court has suggested that the fact of being under arrest detracts from the credibility of an informant. United States v. Atkinson, 653 F. Supp. 668, 672 (S.D.N.Y. 1987) (noting that experienced law officers know that it is not unusual for an arrestee to "`turn' informant in order to ease the conditions of his own arrest"). Further, although Ms. Echeverria was not an anonymous tipster, or a professional informant, she was hardly a reliable, ordinary citizen informant either. See id. Moreover, much of the information provided by Ms. Echeverria, such as the make and color of the car, and the fact that it would be located at Defendant's residence, are innocent facts that did not suggest criminal activity, and would be known to anyone who knew Defendant. See id. at 674; see also Gates, 462 U.S. at 245 (noting that the tip in that case, in the form of an anonymous letter, "contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.").
On the other hand, the presence of the gun, although not illegal to possess, was a fact that probably would not be generally known. It showed that Ms. Echeverria had knowledge of the contents of the car, and that her information was accurate up to that point. Even if there is some doubt as to her motivation, the fact that she apparently had observed the evidence firsthand and explicitly stated where the drugs and gun would be found, entitle her tip to greater weight than might otherwise be the case. See Gates, 462 U.S. at 234. Accordingly, the court concludes that once Detective Chacon had seen the barrel of the gun, which was in plain view in the car, he had probable cause to search the vehicle.
3. Plain View Curtilage Doctrines
In opposition, Defendant suggests that it was unclear from the evidence at the hearing whether Detective Chacon was legally authorized to be in a position to view the firearm in the first place. Defendant states that it is possible that Detective Chacon was on Defendant's property at the time he peered through the car windows without any search warrant or other legal justification for being there. Defendant contends that if Detective Chacon was not in a position where he was legally permitted to be when he viewed the gun, the subsequent search was invalid.
Courts have sometimes used both the plain view doctrine and the automobile exception in combination to uphold the warrantless search of a vehicle. United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002). "More specifically, if an officer has lawfully observed an object of incriminating character in plain view in a vehicle, that observation, either alone or in combination with additional facts, has been held sufficient to allow the officer to conduct a probable cause search of the vehicle." Id. For the plain view doctrine to apply, rendering the observation of the gun not a Fourth Amendment search, Detective Chacon must have viewed the evidence from a vantage point where he had a right to be. United States v. Swepston, 987 F.2d 1510, 1516 n. 4 (10th Cir. 1993); see Horton v. California, 496 U.S. 128, 136-34 (1990).
In asserting that Detective Chacon might have been on Defendant's property when he viewed the gun, Defendant arguably invokes the curtilage doctrine. See United States v. Cavely, 318 F.3d 987, 993 (10th Cir. 2003). Thus, the court must determine whether the car was located within the protected curtilage of the home. If it was not, then no Fourth Amendment violation occurred as a result of Detective Chacon's walking around and peering into the car. See United States v. Long, 176 F. 3d 1304, 1307 (10th Cir. 1999). Whether an area is within the curtilage is a question of fact. Swepston, 987 F.2d at 1513.
"Curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." Long, 176 F.3d at 1308 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)); accord Swepston, 987 F.2d at 1513. To determine whether an area falls within the curtilage, the court considers four factors: "(1) the proximity of the area to the home; (2) inclusion of the area within an enclosure surrounding the home; (3) the nature of the uses of the area; and (4) steps taken by the resident to protect the area from observation by persons passing by." Long 176 F.3d at 1308;see United States v. Dunn, 480 U.S. 294, 301 (1987); accord Swepston, 987 F.2d at 1514. These factors are only "analytical tools" useful in determining the ultimate question of "whether the area in question is so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." Long, 176 F.3d at 1308 (quoting Dunn 480 U.S. at 301). The burden is on the defendant to prove that he had a legitimate expectation of privacy in the area claimed to be invaded. United States v. Cavely, 318 F.3d 987, 994 (10th Cir. 2003); Ludwig, 10 F.3d at 1526; see Long, 176 F.3d at 1307.
The evidence with regard to the area where Detective Chacon viewed the gun is sparse. At the hearing, Detective Chacon described the area where the vehicle was parked as follows: "Just out of the driveway into the backyard slightly is like a cement driveway that you can pull behind it. There was the silver Honda Civic." (Tr. 10.) The Magistrate Judge, in making findings of fact at the hearing, stated: "The vehicle, as described by Mrs. Echeverria as a silver, gray Honda Civic, was seen in a driveway toward the rear of the home? Did I get that right?" (Tr. 20.) Neither party disagreed with this finding.
Applying the four factors listed above, there was little evidence presented regarding the proximity of this area to the house, but it appears from Detective Chacon's statement that the area was fairly close to the house. No evidence was presented that either the parking area or the house were within an enclosure such as a fence, or that Defendant had taken any steps to protect the area from observation. Finally, there was no showing that he used this area for activity "associated with the intimate activity associated with the sanctity of a man's home."Long, 176 F.3d at 1308 (quoting Oliver, 466 U.S. at 180). In fact, there was no showing that it was used for anything other than a parking area. From the description provided by Detective Chacon, it appears that the cement area was merely an extension of the driveway, readily accessible from a public street, in which Defendant had no reasonable expectation of privacy. See United States v. Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993) (Although the area of defendant's yard where police smelled marijuana was close to the house, the yard was unenclosed; there was no indication that defendant attempted to shield it from public view; and there was no evidence that defendant had any particular use for the area).
At the hearing on the motion to suppress, Defendant did not present any evidence on these issues or ask the court to make findings with respect thereto. See Cavely, 318 F.3d at 994. Under the circumstances, the court concludes that Defendant failed to carry his burden to show that Detective Chacon invaded the protected curtilage area in order to observe the firearm.
III. RECOMMENDATION
The search of Defendant's car was lawful under the automobile exception to the search warrant requirement. Accordingly, Defendant's motion to suppress (Dkt. 20) should be DENIED. Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.