F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 97-8016
(D.C. No. 95-CR-099-J)
ERIC PORTER, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
Defendant-appellant Eric Porter appeals the denial of his motion to
suppress. He pleaded guilty to possession of an unregistered firearm, 26 U.S.C.
§§ 5841, 5845, 5861(d) & 5871, and was sentenced to 21 months imprisonment to
be followed by two years of supervised release. Our jurisdiction arises under 28
U.S.C. § 1291 and we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Based upon reports that Mr. Porter made threats with a sawed-off shotgun
and rifle, several officers went to Mr. Porter’s residence to arrest him. Mr.
Porter’s residence was a mobile home with a fence on the perimeter. Mr. Porter
came out of his residence and spoke with one of the officers while another officer
took cover behind Mr. Porter’s vehicle located 10-12 feet away from the
residence, but within the perimeter fence. The officer behind the vehicle
“happened to look down and saw an illegal firearm laying on the front seat.” Tr.
8/22/96 at 12. He reached in the vehicle, grabbed the sawed-off shotgun and
unloaded it. Id. at 13. The officers then obtained a search warrant from tribal
court to search the residence and the vehicle.
In reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error and the legal question of Fourth
Amendment reasonableness de novo. United States v. Rios, 88 F.3d 867, 869
(10th Cir. 1996). We view the evidence in the light most favorable to the
prevailing party. United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.
1995) (en banc), cert. denied, 116 S. Ct. 2529 (1996).
Mr. Porter first argues that because the vehicle was within the curtilage of
the residence, was for his private use and had tinted windows, a search warrant
was required for a lawful seizure of the shotgun. Although we have held that
vehicles within the curtilage are part of the residence for purposes of a search
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warrant, see United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997), ***
that does not confer an objectively reasonable expectation of privacy in a vehicle
parked outside one’s residence, see Maisano v. Welcher, 940 F.2d 499, 502-03
(9th Cir. 1991), cert. denied, 504 U.S. 916 (1992). To the contrary, the Fourth
Amendment does not protect that which is knowingly exposed to the public, even
within a residence and its curtilage. See Katz v. United States, 389 U.S. 347, 351
(1967). Here, the vehicle was in plain view from the roadway and was not
enclosed by any type of structure. The district court found that the tinted
windows were down. See Tr. 8/22/96 at 56. Thus, the officer could certainly
look in the vehicle without a search warrant.
Mr. Porter also argues that no exigent circumstances supported the seizure
and that reliance upon the plain view doctrine is pretextual. Though the
testimony conflicts on whether the officer merely noticed the sawed-off shotgun
while the car was open or conducted a search to find it, the district court credited
the former account. This trumps much of Mr. Porter’s argument.
A warrantless plain view seizure will be upheld when the officer is properly
in a position to observe and he discovers apparent contraband to which he has a
***
“We have held that outbuildings and vehicles within the curtilage of
a residence are considered part of that residence for purposes of a search warrant,
and have upheld searches of those buildings and vehicles even when not named in
the warrant.” Finnigin, 113 F.2d at 1185.
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lawful right of access. See Horton v. California, 496 U.S. 128, 136-37 (1990);
United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996); United States v.
Soussi, 29 F.3d 565, 570-71 (10th Cir. 1994). Here, the officer was properly on
the premises to assist with Mr. Porter’s arrest and noticed the sawed-off shotgun.
The sawed-off shotgun was not only apparent contraband, but also potential
evidence of the crime being investigated. See United States v. Jiminez, 864 F.2d
686, 688-89 (10th Cir. 1988) (sawed-off shotgun in plain view); United States v.
Justice, 835 F.2d 1310, 1313 (10th Cir. 1987) (machine gun in plain view), cert.
denied, 487 U.S. 1238 (1988). For protection, the officer could seize it; he was
not required to leave it unattended while a warrant was obtained.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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United States v. Porter
Combined Opinion