No. 99-50864
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50864
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ANGEL ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-410-1-DB
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
José Angel Alvarez was convicted in a bench trial of
conspiracy and possession of cocaine with the intent to
distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1).
Alvarez appeals the district court’s decision not to suppress the
evidence found in the vehicle parked in the driveway of the
residence. He contends that the vehicle was within the curtilage
of the dwelling and should be placed under the home’s umbrella of
Fourth Amendment protection.
*
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this opinion should not be published and is not precedent except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.
No. 99-50864
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In reviewing the denial of a motion to suppress, the
district court’s findings of fact are accepted as true unless
clearly erroneous and its conclusions regarding the
constitutionality of law enforcement actions are reviewed de
novo. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.
1999), cert. denied, 120 S. Ct. 996 (2000).
The “curtilage” of a home is protected by the Fourth
Amendment from unconstitutional searches. United States v. Dunn,
480 U.S. 294, 300 (1987). A four-factor test is used to
determine if an area is within the curtilage: (1) the proximity
of the area to the home, (2) whether it is within an enclosure
surrounding the home, (3) the nature of the uses to which the
area is put, and (4) the steps taken by the resident to protect
the area from outside observation. United States v. Thomas, 120
F.3d 564, 571 (5th Cir. 1997).
The district court’s finding that the driveway is not within
the curtilage of the home is not clearly erroneous. The driveway
is an area open to the plain view of anyone passing on the
street. It is open to anyone who wants to use the driveway
because it is not surrounded by a fence. Alvarez evidently did
not take any steps to protect the privacy of the driveway and,
therefore, could not have had a reasonable expectation of privacy
in the area. This holding is consistent with those of other
circuits. See, e.g., United States v. McIver, 186 F.3d 1119,
1126 (9th Cir. 1999), cert. denied, 120 S. Ct. 1210 (2000);
United States v. Penny, 837 F.2d 595, 597 (2d Cir. 1988).
Accordingly, the judgement of the district court is AFFIRMED.
No. 99-50864
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AFFIRMED.