United States v. Alvarez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40700
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RAMON ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-219-1
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January 28, 2003
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Juan Ramon Alvarez appeals his conviction
for possession of marijuana with the intent to distribute it. He
argues that the district court erred when it denied his motion to
suppress evidence of marijuana discovered pursuant to an
investigatory stop made in Alvarez’s driveway. In reviewing the
denial of a motion to suppress, the district court’s factual
findings are reviewed for clear error and the legal conclusions
*
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that this opinion should not be published and is not precedent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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are reviewed de novo. United States v. Smith, 273 F.3d 629, 632
(5th Cir. 2001). The evidence is reviewed in the light most
favorable to the prevailing party. Id.Alvarez argues that the district court erred when it
concluded that he lacked standing to object to the search of the
van he was driving because he lacked permission from the van’s
owner to drive it on that occasion. We agree. A homeowner may
have a reasonable expectation of privacy in a vehicle owned by a
third party but parked on the homeowner’s property. United
States v. Gomez, 276 F.3d 694, 697-98 (5th Cir. 2001). Because
the van was searched on his property and “was the subject of the
unlawful enterprise in which he took part,” Alvarez has standing
to challenge the search. See id. at 697.
Alvarez argues that there was not reasonable suspicion to
perform an investigatory stop of the van. After a thorough
review of the record and application of the factors enunciated in
United States v. Brignoni-Ponce, 422 U.S. 873, 884-885 (1975), we
conclude that the investigatory stop of Alvarez was made with
reasonable suspicion of Alvarez’s criminal activity.
Alvarez argues that there no investigatory stop, but rather
he was followed onto his private property. Investigatory stops
may in some circumstances occur on private property. See United
States v. McLaughlin, 578 F.2d 1180, 1183-84 (5th Cir. 1978). In
McLaughlin, we declined to create a rule that automobile drivers
are safe if they can make the sanctuary of the nearest private
No. 02-40700
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driveway or carport. Because the agent who stopped Alvarez could
have stopped the van on the street right before Alvarez turned
into the driveway and the agent closely followed Alvarez onto his
property, the stop in the driveway was not unreasonable. See
id.; see also Scher v. United States, 305 U.S. 251, 255 (1938).
Alvarez also argues, for the first time on appeal, that the
investigatory stop took four hours to complete. We do not
consider new evidence furnished for the first time on appeal and
may not consider facts which were not before the district court
at the time of its ruling. Theriot v. Parish of Jefferson, 185
F.3d 477, 491 n.26 (5th Cir. 1999).
Alvarez further argues that the marijuana was not visible in
the van because the van’s windows were covered by curtains and
venetian blinds. The border patrol agent who testified at
Alvarez’s suppression hearing refuted this allegation. The
district court determined that the bundles of marijuana were
visible from the rear windows of the van. When there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous. United States v.
Gillyard, 261 F.3d 506, 509 (5th Cir. 2001), cert. denied, 122
S. Ct. 841 (2002).
The subsequent search of the van was not tainted by the stop
because the stop was made with a reasonable suspicion that the
van contained marijuana or other contraband. See United States
v. Espinosa-Alvarado, 302 F.3d 304, 306-07 (5th Cir. 2002). The
No. 02-40700
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district court did not err in denying Alvarez’s motion to
suppress. The judgment of the district court is AFFIRMED.