United States v. Echeverria ( 2006 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    November 6, 2006
    TENTH CIRCUIT                      Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff - Appellee,                     No. 05-4256
    v.                                               (D. Utah)
    FR AN CISC O M A RC OS                          (D.C. No. 2:04-CR-136-DB)
    EC HEV ER RIA ,
    Defendant - Appellant.
    OR D ER AND JUDGM ENT *
    Before KELLY, B EA M , ** and HA RTZ, Circuit Judges.
    Francisco M arcos Echeverria pleaded guilty in the United States District
    Court for the District of Utah to a charge of possession of methamphetamine with
    intent to distribute, see 
    21 U.S.C. § 841
    (a)(1). The plea was a conditional plea
    under Fed. R. Cr. P. 11(a)(2); he reserved the right to appeal the denial of his
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. The court generally disfavors the citation of orders and
    judgments; nevertheless, an order and judgment may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    **
    The Honorable C . Arlen Beam, Senior Circuit Judge for the Eighth Circuit
    Court of Appeals, sitting by designation.
    motion to suppress the evidence seized from his motor vehicle. On appeal he
    challenges that denial. W e have jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    I.    B ACKGR OU N D
    Viewing the evidence in the light most favorable to the district court's
    ruling, see United States v. Lopez, 
    437 F.3d 1059
    , 1062 (10th Cir. 2006), we
    summarize the pertinent events as follows: On October 22, 2002, Detective Rudy
    Chacon of the Salt Lake City Sheriff's Office assisted agents of the Utah
    Department of Adult Parole and Probation (AP & P) in arresting M s. Kara
    Echeverria. A search of M s. Echeverria's person revealed a firearm and narcotics.
    Detective Chacon asked her whether she knew of anyone else who possessed like
    items. M s. Echeverria responded that her husband possessed both a firearm and
    drugs and usually kept them in his car. She said that he was home at that time
    and described the car as a silver or gray Honda Civic. At Chacon’s request, other
    officers conducted surveillance on the home until he arrived. They saw a vehicle
    leave the home and attempted to follow it, but lost it and returned to the home.
    W hen Detective Chacon arrived at the Echeverria home, the officers
    knocked on the main door but received no answer. They then saw that the side
    door was open and knocked on it, but again they heard no response. W hile at the
    side door Chacon noticed a silver Honda Civic parked toward the rear of the
    home, in a driveway that looped into the backyard. He walked around the vehicle
    and saw on the floor of the backseat a gun barrel protruding from under a jacket.
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    W ith this corroboration of M s. Echeverria’s statement, he searched the Honda,
    finding methamphetamine, cocaine, and $6,888 in cash.
    M r. Echeverria was indicted on three counts: one relating to the
    methamphetamine, one relating to the cocaine, and one charging that he had
    carried a firearm in connection with a drug offense. He moved to suppress the
    evidence. After the motion was denied, he pleaded guilty to Count I of the
    indictment but reserved his right to appeal the suppression ruling.
    II.   D ISC USSIO N
    “W hen reviewing the denial of a motion to suppress, we view the evidence
    in the light most favorable to the government, accept the district court's findings
    of fact unless clearly erroneous, and review de novo the ultimate determination of
    reasonableness under the Fourth Amendment.” United States v. Apperson, 
    441 F.3d 1162
    , 1184 (10th Cir. 2006) (internal quotation marks omitted).
    A.     W arrant Requirem ent
    M r. Echeverria contends that because he was neither in nor near his car and
    because the car was parked at his home, the officers needed a warrant to search
    the car. But these facts are irrelevant. Unless a vehicle is being used as a
    residence at a “place regularly used for residential purposes,” California v.
    Carney, 
    471 U.S. 386
    , 392 (1985); see United States v. Ludwig, 
    10 F.3d 1523
    ,
    1529 (10th Cir. 1993), officers w ith probable cause can search it without a
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    warrant if it is “readily mobile.” M aryland v. Dyson, 
    527 U.S. 465
    , 467 (1999)
    (quoting Pennsylvania v. Labron, 
    518 U.S. 938
    , 940 (1996)).
    M r. Echeverria does not claim that he was living in the Honda or that it had
    mechanical or other difficulties that would have made it impossible to drive at the
    time of the search. His only argument on this point is that his car was rendered
    immobile because five police officers controlled the area around the vehicle and
    he was not present. W e disagree. “[T]he justification to conduct . . . a
    warrantless search does not . . . depend upon a reviewing court's assessment of
    the likelihood in each particular case that the car w ould have been driven away . .
    . .” M ichigan v. Thom as, 
    458 U.S. 259
    , 261 (1982). W hether a vehicle’s mobility
    “has been or could be obstructed by the police” is immaterial. United States v.
    M ercado, 
    307 F.3d 1226
    , 1229 (10th Cir. 2002) (internal quotation marks
    omitted).
    M r. Echeverria also claims that a warrant was required because his car was
    within the curtilage of his home. But regardless of the merits of the legal basis
    for his contention, he has failed to establish its factual predicate. It is his burden
    to present evidence that the car w as within the curtilage. See United States v.
    Cavely, 
    318 F.3d 987
    , 993-94 (10th Cir. 2003). Curtilage does not include all the
    area that surrounds a house; it is only “the area [that] harbors the intimate activity
    associated with the sanctity of a man's home and the privacies of life.” United
    States v. Dunn, 
    480 U.S. 294
    , 300 (1987) (internal quotation marks omitted).
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    That area does not include an unobstructed driveway beside a house. See United
    States v. Cousins, 
    455 F.3d 1116
    , 1123-24 (10th Cir. 2006) (describing test for
    determining whether area is within curtilage).
    M r. Echverria cites two state-court decisions for the proposition that a
    warrant is needed to search a vehicle parked on private property: State v.
    Lejeune, 
    576 S.E.2d 888
     (Ga. 2003), and State v. Roaden, 
    648 N.E.2d 916
     (O hio
    Ct. App. 1994). Neither persuades us to depart from contrary binding precedent.
    B.     Probable Cause
    M r. Echeverria next argues that Detective Chacon lacked probable cause to
    search his vehicle. He points to several reasons not to rely on M s. Echeverria’s
    statements to the police: (1) she stated that she did not want drugs in their home,
    so it is uncertain how she would know about drugs in the vehicle; (2) she said
    only that drugs were “usually” in the vehicle; (3) the officers had no license
    number or other specific description of the Honda; (4) the officers had no reason
    to believe she was credible; (5) the information corroborated by the officers’
    observations was not in itself incriminating; and (6) at least part of her
    information was incorrect.
    Probable cause exists w hen there is a “fair probability” that contraband is
    in the car to be searched. United States v. Stephenson, 
    452 F.3d 1173
    , 1177 (10th
    Cir. 2006). Probable cause is a “commonsense, nontechnical conception[] that
    deal[s] with the factual and practical considerations of everyday life on which
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    reasonable and prudent men, not legal technicians, act.” Ornelas v. United States,
    
    517 U.S. 690
    , 695 (1996) (internal quotation marks omitted). An informant's
    veracity, reliability, and basis of knowledge are all relevant factors. See Illinois
    v. Gates, 
    462 U.S. 213
    , 230 (1983). But none is dispositive. As we have said:
    [A] deficiency in one factor 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. Specifically, when there is
    sufficient independent corroboration of an informant's information,
    there is no need to establish the veracity of the informant.
    United States v. Artez, 
    389 F.3d 1106
    , 1111 (10th Cir. 2004) (internal citations,
    quotation marks, and brackets omitted).
    By this standard, we believe there was probable cause. Three of
    M r. Echeverria’s reasons not to rely on his wife’s statement have little merit.
    First, contrary to M r. Echeverria’s argument on this point, one can presume as a
    matter of commonsense that a wife likely knows the intimate details of the life of
    the husband with whom she resides. Second, because “probable” cause is not a
    certainty, it is enough that the witness says what “usually” can be found. Third,
    the Honda was more than adequately identified; the presence of another
    identically colored Honda at the residence was hardly likely.
    There is greater merit to M r. Echeverria’s contention that the officers had
    insufficient reason to believe that his wife was credible. There was no evidence
    of a prior relationship between her and any of the officers from which they could
    have measured her veracity. On the other hand, there was no reason to believe
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    that she was hostile to M r. Echeverria; indeed, apparently they were living in the
    same home. W e also believe that her involvement with drugs made it more likely
    that he had a similar involvement.
    Under these circumstances, not much corroboration of her account would
    be required. In our view, it was enough that she accurately reported where the
    described vehicle would be and that there would be a gun inside it. She may have
    been mistaken in saying that M r. Echeverria was home at the time, because the
    officers did not find him there. But the explanation for this “error” may well
    have been that he was the person seen driving off before Detective Chacon
    arrived at the home. Although this is a close case, we affirm the district court’s
    determination of probable cause.
    III.   C ON C LU SION
    W e AFFIRM the judgment of the district court.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
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