United States v. Orona-Herrera ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50025
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ORONA-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(P-00-CR-250-1)
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October 15, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Antonio Orona-Herrera appeals his
conviction, based on a conditional guilty plea, for importing
marijuana into the United States and possessing with the intent to
distribute marijuana. Orona contends that the district court erred
in denying his motion to suppress evidence obtained from the
warrantless searches of: (1) an area of brush on a residential lot
containing a mobile home at which he was an overnight guest and (2)
bags found in the brush area.
*
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that this opinion should not be published and is not precedent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.
The "standard of review for a motion to suppress based on live
testimony at a suppression hearing is to accept the trial court's
factual findings unless clearly erroneous or influenced by an
incorrect view of the law." United States v. Alvarez, 6 F.3d 287,
289 (5th Cir. 1993). We view the evidence in the light most
favorable to the prevailing party and will not question the
district court's credibility calls. United States v. Garza, 118
F.3d 278, 282-83 (5th Cir. 1997). We review questions of law de
novo, however, including whether an expectation of privacy is
reasonable under the circumstances and whether the district court's
ultimate conclusions of Fourth Amendment reasonableness are
correct. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.
1998).
“The [Fourth] Amendment protects persons against unreasonable
searches of “‘their persons [and] houses’" and thus indicates that
the Fourth Amendment is a personal right that must be invoked by an
individual.” Minnesota v. Carter, 525 U.S. 83, 88 (1998). “[T]o
claim the protection of the Fourth Amendment, a defendant must
demonstrate that he personally has an expectation of privacy in the
place searched, and that his expectation is reasonable . . . .”
Id. “An overnight guest in a house ha[s] the sort of expectation
of privacy that the Fourth Amendment protects.” Id. at 89.
The Fourth Amendment protects the privacy of the home, but an
individual who is entitled to claim that protection may not
legitimately demand privacy for activities conducted in open areas
out of doors, such as fields or woods, except in the immediate
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vicinity of the home. Oliver v. United States, 466 U.S. 170, 176,
178 (1984). This limited additional area of protection, the
“curtilage”, comprises the zone that a person reasonably may expect
to be treated as the home itself. United States v. Thomas, 120
F.3d 564, 571 (5th Cir. 1997). In determining whether an area
outside the home is curtilage, we consider: (1) the proximity of
the area to the home; (2) whether the area 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. Id.In the instant case, the brush area was 20 to 30 feet away
from the mobile home; was not within any enclosure surrounding the
mobile home; was not put to use for normal living activities but
instead was used for hiding things; and only rudimentary steps were
taken to protect the area from outside observation. When viewed in
light of these factors, Orona’s efforts to establish that the brush
area was so intimately tied to the mobile home that it should be
placed under the home’s umbrella of Fourth Amendment protection for
curtilage are unavailing. See Thomas, 120 F.3d at 571; United
States v. McKeever, 5 F.3d 863, 867 (5th Cir. 1993); United States
v. Dunn, 480 U.S. 294, 297, 302-03 (1987). The district court’s
judgment is
AFFIRMED.
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