F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-4256
v. (D. Utah)
FR AN CISC O M A RC OS (D.C. No. 2:04-CR-136-DB)
EC HEV ER RIA ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, B EA M , ** and HA RTZ, Circuit Judges.
Francisco M arcos Echeverria pleaded guilty in the United States District
Court for the District of Utah to a charge of possession of methamphetamine with
intent to distribute, see 21 U.S.C. § 841(a)(1). The plea was a conditional plea
under Fed. R. Cr. P. 11(a)(2); he reserved the right to appeal the denial of his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The 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.
**
The Honorable C . Arlen Beam, Senior Circuit Judge for the Eighth Circuit
Court of Appeals, sitting by designation.
motion to suppress the evidence seized from his motor vehicle. On appeal he
challenges that denial. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
Viewing the evidence in the light most favorable to the district court's
ruling, see United States v. Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006), we
summarize the pertinent events as follows: On October 22, 2002, Detective Rudy
Chacon of the Salt Lake City Sheriff's Office assisted agents of the Utah
Department of Adult Parole and Probation (AP & P) in arresting M s. Kara
Echeverria. A search of M s. Echeverria's person revealed a firearm and narcotics.
Detective Chacon asked her whether she knew of anyone else who possessed like
items. M s. Echeverria responded that her husband possessed both a firearm and
drugs and usually kept them in his car. She said that he was home at that time
and described the car as a silver or gray Honda Civic. At Chacon’s request, other
officers conducted surveillance on the home until he arrived. They saw a vehicle
leave the home and attempted to follow it, but lost it and returned to the home.
W hen Detective Chacon arrived at the Echeverria home, the officers
knocked on the main door but received no answer. They then saw that the side
door was open and knocked on it, but again they heard no response. W hile at the
side door Chacon noticed a silver Honda Civic parked toward the rear of the
home, in a driveway that looped into the backyard. He walked around the vehicle
and saw on the floor of the backseat a gun barrel protruding from under a jacket.
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W ith this corroboration of M s. Echeverria’s statement, he searched the Honda,
finding methamphetamine, cocaine, and $6,888 in cash.
M r. Echeverria was indicted on three counts: one relating to the
methamphetamine, one relating to the cocaine, and one charging that he had
carried a firearm in connection with a drug offense. He moved to suppress the
evidence. After the motion was denied, he pleaded guilty to Count I of the
indictment but reserved his right to appeal the suppression ruling.
II. D ISC USSIO N
“W hen reviewing the denial of a motion to suppress, we view the evidence
in the light most favorable to the government, accept the district court's findings
of fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Apperson, 441
F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).
A. W arrant Requirem ent
M r. Echeverria contends that because he was neither in nor near his car and
because the car was parked at his home, the officers needed a warrant to search
the car. But these facts are irrelevant. Unless a vehicle is being used as a
residence at a “place regularly used for residential purposes,” California v.
Carney, 471 U.S. 386, 392 (1985); see United States v. Ludwig, 10 F.3d 1523,
1529 (10th Cir. 1993), officers w ith probable cause can search it without a
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warrant if it is “readily mobile.” M aryland v. Dyson, 527 U.S. 465, 467 (1999)
(quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)).
M r. Echeverria does not claim that he was living in the Honda or that it had
mechanical or other difficulties that would have made it impossible to drive at the
time of the search. His only argument on this point is that his car was rendered
immobile because five police officers controlled the area around the vehicle and
he was not present. W e disagree. “[T]he justification to conduct . . . a
warrantless search does not . . . depend upon a reviewing court's assessment of
the likelihood in each particular case that the car w ould have been driven away . .
. .” M ichigan v. Thom as, 458 U.S. 259, 261 (1982). W hether a vehicle’s mobility
“has been or could be obstructed by the police” is immaterial. United States v.
M ercado, 307 F.3d 1226, 1229 (10th Cir. 2002) (internal quotation marks
omitted).
M r. Echeverria also claims that a warrant was required because his car was
within the curtilage of his home. But regardless of the merits of the legal basis
for his contention, he has failed to establish its factual predicate. It is his burden
to present evidence that the car w as within the curtilage. See United States v.
Cavely, 318 F.3d 987, 993-94 (10th Cir. 2003). Curtilage does not include all the
area that surrounds a house; it is only “the area [that] harbors the intimate activity
associated with the sanctity of a man's home and the privacies of life.” United
States v. Dunn, 480 U.S. 294, 300 (1987) (internal quotation marks omitted).
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That area does not include an unobstructed driveway beside a house. See United
States v. Cousins, 455 F.3d 1116, 1123-24 (10th Cir. 2006) (describing test for
determining whether area is within curtilage).
M r. Echverria cites two state-court decisions for the proposition that a
warrant is needed to search a vehicle parked on private property: State v.
Lejeune, 576 S.E.2d 888 (Ga. 2003), and State v. Roaden, 648 N.E.2d 916 (O hio
Ct. App. 1994). Neither persuades us to depart from contrary binding precedent.
B. Probable Cause
M r. Echeverria next argues that Detective Chacon lacked probable cause to
search his vehicle. He points to several reasons not to rely on M s. Echeverria’s
statements to the police: (1) she stated that she did not want drugs in their home,
so it is uncertain how she would know about drugs in the vehicle; (2) she said
only that drugs were “usually” in the vehicle; (3) the officers had no license
number or other specific description of the Honda; (4) the officers had no reason
to believe she was credible; (5) the information corroborated by the officers’
observations was not in itself incriminating; and (6) at least part of her
information was incorrect.
Probable cause exists w hen there is a “fair probability” that contraband is
in the car to be searched. United States v. Stephenson, 452 F.3d 1173, 1177 (10th
Cir. 2006). Probable cause is a “commonsense, nontechnical conception[] that
deal[s] with the factual and practical considerations of everyday life on which
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reasonable and prudent men, not legal technicians, act.” Ornelas v. United States,
517 U.S. 690, 695 (1996) (internal quotation marks omitted). An informant's
veracity, reliability, and basis of knowledge are all relevant factors. See Illinois
v. Gates, 462 U.S. 213, 230 (1983). But none is dispositive. As we have said:
[A] deficiency in one factor may be compensated for, in determining
the overall reliability of a tip, by a strong showing as to the other, or
by some other indicia of reliability. Specifically, when there is
sufficient independent corroboration of an informant's information,
there is no need to establish the veracity of the informant.
United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004) (internal citations,
quotation marks, and brackets omitted).
By this standard, we believe there was probable cause. Three of
M r. Echeverria’s reasons not to rely on his wife’s statement have little merit.
First, contrary to M r. Echeverria’s argument on this point, one can presume as a
matter of commonsense that a wife likely knows the intimate details of the life of
the husband with whom she resides. Second, because “probable” cause is not a
certainty, it is enough that the witness says what “usually” can be found. Third,
the Honda was more than adequately identified; the presence of another
identically colored Honda at the residence was hardly likely.
There is greater merit to M r. Echeverria’s contention that the officers had
insufficient reason to believe that his wife was credible. There was no evidence
of a prior relationship between her and any of the officers from which they could
have measured her veracity. On the other hand, there was no reason to believe
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that she was hostile to M r. Echeverria; indeed, apparently they were living in the
same home. W e also believe that her involvement with drugs made it more likely
that he had a similar involvement.
Under these circumstances, not much corroboration of her account would
be required. In our view, it was enough that she accurately reported where the
described vehicle would be and that there would be a gun inside it. She may have
been mistaken in saying that M r. Echeverria was home at the time, because the
officers did not find him there. But the explanation for this “error” may well
have been that he was the person seen driving off before Detective Chacon
arrived at the home. Although this is a close case, we affirm the district court’s
determination of probable cause.
III. C ON C LU SION
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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