United States v. Gomez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-51233
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAVIER GOMEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
December 20, 2001
Before JOLLY, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Javier Gomez challenges his conviction of
conspiracy, possession of marihuana with in-
tent to distribute, and maintaining a place for
the purposes of possession and distribution of
marihuana. We vacate and remand.
I.
Customs agents received a tip that a rental
truck was parked outside Gomez’s residence
in El Paso, Texas. The agents previously had
received information suggesting the house was
being used as a narcotics “stash house.”
When the agents arrived at Gomez’s house,
he refused them permission to search inside
but consented to a search of the garage. When
asked about the truck parked in his driveway,
Gomez stated that it belonged to his cousin

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and that a person named “Ben” had the keys.
Sergeant Tom Holloway entered the back-
yard when he saw Angel Valenzuela, Gomez’s
cousin, who informed Holloway that another
nearby man, Benjamin Lowe, had the keys to
the truck. Holloway advised Lowe that he was
a police officer conducting an investigation
and requested permission to search the truck.
Lowe consented and gave Holloway the keys.
The resulting search revealed that the back of
the truck contained seven cardboard box-
esSSover 170 poundsSSof marihuana. The
agents also found marihuana and other poten-
tially incriminating evidence inside Gomez’s
house.
After the discovery of the marihuana, the
officers arrested Gomez, Valenzuela, and
Lowe. They advised Gomez of his Miranda
rights and began to question him. After telling
two contradictory stories, Gomez eventually
admitted that Valenzuela and Lowe had paid
him $200 for permission to use his house to
“store the dope” for eventual sale. The truck
was determined to be a rental vehicle; the
rental agreement was signed by Lowe and
does not list Gomez as an authorized driver.
II.
The district court suppressed all evidence
obtained in the search of the house but admit-
ted the evidence found in the truck, holding
that Gomez lacked standing to challenge its
admissibility. Gomez’s conviction was based
in large part on this evidence. On appeal, Go-
mez contends that the use of the evidence from
the truck violated his Fourth Amendment
rights. He also avers that the use of co-defen-
dant testimony against him at trial violated his
Sixth Amendment rights under the Confronta-
tion Clause.
III.
To establish standing to “contest the valid-
ity of a search under the Fourth Amendment,”
the defendant must prove that he has a “rea-
sonable expectation of privacy.” United States
v. Cardoza-Hinojosa, 140 F.3d 610, 614 (5th
Cir. 1996). In considering challenges to a
ruling on a motion to suppress, “we must
accept the district court’s findings of underly-
ing facts unless clearly erroneous.” Id. at 613.
“Questions of law, howeverSSincluding wheth-
er an expectation of privacy is reasonable
under the circumstances . . .SSare reviewed de
novo, as is the district court’s ultimate deter-
mination of Fourth Amendment reasonable-
ness.” Id.
This case presents an issue of first impres-
sion: whether a homeowner has a reasonable
expectation of privacy in a vehicle owned and
operated by a third party but parked on the
homeowner’s driveway.1 We conclude that
Gomez had that expectation, but only because
the evidence seized not only was in a truck
parked on his property, but also was known to
him because it was the subject of the unlawful
enterprise in which he took part. We do not
speculate on whether there would be standing
in any other situation in which these factors
were not present.
1 The only two federal courts to have addressed
the issue have concluded that a homeowner does
have such an expectation. See United States ex
rel. Boyance v. Myers, 270 F. Supp. 734, 742
(E.D. Pa. 1967) (holding that a defendant, “by
reason of his ownership of the premises, has stand-
ing to challenge the search of [a third party’s] . . .
automobile while it was in the [defendant’s] . . .
driveway”), rev’d on other grounds, 398 F.2d 896
(3d Cir. 1968); United States v. Costner, 217 F.
Supp. 644, 646 (E.D. Tenn. 1963) (same). Neither
of these decisions provides substantial guidance,
and neither is binding on us.

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Whether there is standing to contest the
validity of a search “depends on (1) whether
the defendant is able to establish an actual,
subjective expectation of privacy with respect
to the place being searched or items being
seized, and (2) whether that expectation of pri-
vacy is one which society would recognize as
reasonable.” United States v. Kye Soo Lee,
898 F.2d 1034, 1037-38 (5th Cir. 1990). Go-
mez had both a subjective and an objective ex-
pectation.
A.
There is no real doubt that Gomez had a
“subjective expectation of privacy with re-
spect” to the truck parked in his driveway. Id.
at 1037. Otherwise, he hardly would have
been likely to allow Lowe and Valenzuela to
stash the marihuana there while the truck was
in his driveway. In any event, the government
does not claim that Gomez fails this prong of
the test.
B.
The difficult question is whether Gomez’s
expectation of privacy in the truck “is one
which society would recognize as reasonable.”
Id. at 1037-38. “Fourth amendment rights are
individually held and cannot be asserted solely
by reference to a particular place.” United
States v. Vega, 221 F.3d 789, 797 (5th Cir.
2000), cert. denied, 531 U.S. 1155 (2001).
Nonetheless, the fact that the truck was on
Gomez’s property is undeniably relevant to the
question whether he had a reasonable expec-
tation of privacy.2 The “factors to be weighed
include whether the defendant has a posses-
sory interest in the thing seized or the place
searched, whether he has the right to exclude
others from that place, whether he has exhib-
ited a subjective expectation that it would re-
main free from governmental invasion, wheth-
er he took normal precautions to maintain his
privacy and whether he was legitimately on the
premises.” United States v. Haydel, 649 F.2d
1152, 1155 (5th Cir. Unit A Jul. 1981). No
one circumstance has a decisive “talismanic”
significance. Id.
The Haydel factors tilt in Gomez’s favor.
He had a strong possessory interest in “the
place searched,” id., which was the real prop-
erty on which his house was located. He
plainly had the right to exclude others from the
premises, which he owned, and thereby to
exclude othersSSexcept possibly the renters of
the truckSSfrom the truck by excluding them
from the real property. Although apparently it
was not Gomez who locked the truck, he had
a subjective expectation of privacy in its
contents; he obviously knew of the 170
pounds of marihuana stored there and was
concerned that it not be discovered. The
“normal precautions to maintain his privacy,”
id., included having the truck parked on his
property to protect that privacy. Finally, it is
undeniable that Gomez was “legitimately on
the premises,” id., of his own house.
Because of Gomez’s possessory interest in
the land, and particularly because he and his
associates had an overriding interest in privacy
2See, e.g., Rakas v. Illinois, 439 U.S. 128, 143
n.12 (1978) (noting that “one who owns or law-
fully possesses or controls property will in all
likelihood have a legitimate expectation of privacy
by virtue of his right to exclude”); Alderman v.
(continued...)
2(...continued)
United States, 394 U.S. 165, 176-79 (1969)
(holding that homeowner’s property interest grants
him standing to object to electronic surveillance of
conversations in his home even if he was not a
party to the conversations).

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regarding the marihuana in the truck, we
conclude, under the specific facts of this case,
that he did indeed have a reasonable expecta-
tion of privacy sufficient to create standing for
a Fourth Amendment challenge to the search
of the truck.3
IV.
Gomez also challenges his conviction on
the ground that the district court allowed co-
defendant testimony to be used against him in
violation of the Sixth Amendment’s Confron-
tation Clause, as explicated in Bruton v. Unit-
ed States, 391 U.S. 123 (1968), under which
a defendant’s right to confront witnesses “is
violated when (1) several co-defendants are
tried jointly, (2) one defendant’s extrajudicial
statement is used to implicate another defen-
dant in the crime, and (3) the confessor does
not take the stand and is thus not subject to
cross-examination.” United States v. Restrep-
po, 994 F.2d 173, 186 (5th Cir. 1993) (citing
Bruton, 391 U.S. at 127). Gomez’s claim falls
short on the first prong of the test, because he
was tried separately.4
The judgment of conviction is VACATED,
and this matter is REMANDED for further
proceedings.5
3 Other circuits have gone further and have
recognized standing by homeowners to challenge
searches of containers found on their premises but
owned by third parties. See United States v. Cas-
sity, 720 F.2d 451, 457 (6th Cir. 1983) (holding
that defendant had standing to challenge search of
container stored in his home that he did not own or
know the contents of), vacated on other grounds,
468 U.S. 1212 (1984); United States v. Issacs, 708
F.2d 1365, 1367-69 (9th Cir. 1983) (holding that
defendant had legitimate expectation of privacy in
contents of locked safe stored in his apartment but
owned by third party who had the key); United
States v. Perez, 700 F.2d 1232, 1236 (8th Cir.
1983) (holding that defendant could challenge
search of luggage belonging to overnight guests
staying in his house). Arguably to the contrary is
United States v. Garcia-Rosa, 876 F.2d 209, 218-
219 (1st Cir. 1989) (holding that defendant had
standing to challenge seizure of a box found in his
house and owned by a third party, but not to
challenge the search of its contents), vacated on
other grounds sub nom. Rivera-Feliciano v.
United States, 498 U.S. 954 (1990).
We need not opine on the validity of these
conclusions, for Gomez told the police that he had
given Valenzuela and Lowe permission to store
marihuana at his house; he therefore definitely
knew of the contents of the truck. We need not,
and do not, express a view on the expectation of
privacy in the other cited cases, in which the de-
fendants did not know the contents of the searched
containers.
This case also is readily distinguishable from
Garcia-Rosa. There, the court based its decision
on the fact that the defendant had “failed to assert”
(continued...)
3(...continued)
any expectation of privacy in the content of the box
at his suppression hearing. Id. at 219. By con-
trast, Gomez asked the district court to suppress
“[a]ll tangible evidence seized . . . in connection
with the search of the residence . . . or in connec-
tion with the investigation of this case.” Second,
the Garcia-Rosa defendant may not have known of
the contents of the box and in fact went “out of his
way to” minimize his connection to it. Id.
4 See United States v. Briscoe, 742 F.2d 842,
847 (5th Cir. 1984) (holding that “for Bruton to
apply, . . . there must be a joint trial with co-defen-
dants”).
5 We do not consider Gomez’s argument that
the search of the truck was “fruit of the poisonous
tree” of the illegal search of his house and back-
yard. This issue was not raised in the district
court, and the outcome may depend on facts not
(continued...)

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fully developed in the suppression hearing. Nor do
we consider the question whether there was consent
to search. The government and Gomez are free to
raise these and other issues on remand, as appro-
priate.

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