United States v. Lenny Salinas ( 2013 )

Case: 12-40842 Document: 00512344556 Page: 1 Date Filed: 08/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2013
No. 12-40842
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LENNY SALINAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:11-CR-1167-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Lenny Salinas appeals his jury trial conviction on
one count of possession with intent to distribute in excess of 100 kilograms of
marijuana. He asserts that the district court erred in denying his motion to
suppress. Regarding an appeal of suppression issues, we review questions of law
de novo and questions of fact for clear error. United States v. Cooke, 674 F.3d
491, 493 (5th Cir. 2012).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-40842
At the outset, we note that Salinas does not renew his challenge to the
validity of the affidavits supporting the search warrants. An issue must be
briefed to be preserved. FED. R. APP. P. 28(a)(9); United States. v. Charles, 469
F.3d 402, 408 (5th Cir. 2006). Salinas has therefore abandoned his challenge to
the validity of the affidavits by failing to brief the issue.
Salinas challenges the district court’s determination that the pickup truck
and the horse trailer, where the marijuana was found, were not within the
curtilage of the home at 2409 Alamo Street. He argues that law enforcement
agents, who had not yet obtained a search warrant, violated his Fourth
Amendment rights by entering the property without consent and conducting
canine sniffs of these vehicles, which were in an area visible from the street.
Salinas also contends that the agents conducted an improper knock-and-talk
procedure when they ordered Laura Salinas (Laura) not to leave and proceeded
to enter the property without consent. He asserts that his inculpatory
statements were the product of violation of the Fourth Amendment right and
thus must be suppressed as fruit of the poisonous tree.
When deciding whether a particular area is within the curtilage of the
home, a court should look to the four factors set forth in United States v. Dunn,
480 U.S. 294, 301 (1987). These factors are applied to determine “whether the
area in question harbors the intimate activity associated with the sanctity of a
man’s home and the privacies of life such that the area is so intimately tied to
the home itself that it should be placed under the home’s umbrella of Fourth
Amendment protection.” Cooke, 674 F.3d at 494 (internal quotation marks and
citation omitted).
Located approximately 15 feet from the home, the pickup truck and horse
trailer were close enough that Dunn’s proximity factor weighs in Salinas’s favor.
However, as the area was not enclosed, was visible from the street, and was used
for parking vehicles and equine-related activities, which are not “intimately tied
to the home itself,” id., the remaining factors weigh in favor of a determination
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No. 12-40842
that the area in question was not curtilage, but rather was an open field. See
Dunn, 480 U.S. at 302-03; Mack v. City of Abilene, 461 F.3d 547, 554-55 (5th Cir.
2006). The district court did not reversibly err in determining that the area in
question was an open field, not curtilage. See Dunn, 480 U.S. at 304.
The foregoing determination largely resolves the issues presented by this
appeal. “[O]nly the curtilage, not the neighboring open fields, warrants the
Fourth Amendment protections that attach to the home.” Oliver v. United
States, 466 U.S. 170, 180 (1984). “[T]here is no constitutional difference between
police observations conducted while in a public place and while standing in the
open fields.” Dunn, 480 U.S. at 304.
We need only briefly address Salinas’s challenge to the knock-and-talk
procedure employed and the ensuing entry of the property. Salinas lacks
standing to assert a violation of Laura’s Fourth Amendment rights. See United
States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010); Club Retro, L.L.C. v. Hilton,
568 F.3d 181, 195 n.5 (5th Cir. 2009). Finally, law enforcement agents did not
violate the Fourth Amendment by entering the open field of the property
following the knock-and-talk encounter, even if they had not obtained consent.
See Cooke, 674 F.3d at 495; Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980).
AFFIRMED.
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