dissenting:
The majority opinion cannot be reconciled with Wattenburg v. United States (9th Cir. 1968) 388 F.2d 853, on the search and seizure issue, with Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 on the Miranda issue, nor with the teaching of Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, on the severance issue.
I
The district court denied appellants’ motions to suppress the marihuana on the ground that the blue panel truck was “abandoned outside the corral area adjacent to a house” and that neither appellant had any expectation of privacy in the truck. As the majority implicitly recognizes, the abandonment theory cannot be sustained on the record. The majority tries to sustain the search by applying the so-called “open field” doctrine. As we said in United States v. Freie (9th Cir. 1976) 545 F.2d 1217, 1223: Since Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, “Hester [Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (the source of the open field doctrine)] no longer has any independent meaning but merely indicates that open fields are not areas in which one traditionally might reasonably expect privacy.” Thus, under Katz and Freie, the Fourth Amendment inquiry is not about geography, but about the state of mind of the person asserting the Fourth Amendment claim and the reasonableness of that person’s expectation of privacy in respect of the area or the thing searched. The test for deciding whether an intrusion into an area near a home is constitutionally forbidden is “whether it constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public.” (Wattenburg v. United States (9th Cir. 1968) 388 F.2d 853, 857.)
Although the majority opinion acknowledges the existence of Katz and Watten-burg, it completely ignores both the rationale and the holdings of those cases. The majority does not address the constitutional test laid down in Wattenburg; instead, it revives the defunct open field doctrine and takes as authority a Fourth Circuit case, decided before Katz. (Janney v. United States (4th Cir. 1953) 206 F.2d 601.)
The majority gives no explanation for distinguishing this case from Wattenburg. I infer from its citation of Janney, after citing Wattenburg, that the majority has *1059concluded that the owner has a reasonable expectation of privacy in a woodpile 20 to 35 feet from a parking area adjacent to his privately-owned guest lodge (Wattenburg), but a homeowner has no such expectation in a storage facility (in our case, the panel truck with wheels removed) if the facility is located 100 or more feet from the residential area. Katz and Wattenburg do not support any distinctions based simply on feet or yards, and Janney is no authority at all.1
The question presented in this case is whether Basile had any reasonable expectation of privacy in the immobilized panel truck near his home. He had as much, or an even greater expectation of privacy in that truck than the lodge owner had in the woodpile in Wattenburg. We can judicially notice the common practice in the rural areas of the West to use immobilized vehicles and trailers for extra household storage. This vehicle was parked, along with several other immobilized vehicles, near Ba-sile’s ranch house, as shown by aerial photographs of the layout. The record does not reveal the precise distance of the truck from the ranch house. (The majority’s statement that the truck “was probably about 100 yards away from the house” is speculation; the record does not support the conjecture.) The location of the vehicle, like the woodpile in Wattenburg, was not in an open field, but in Basile’s “back yard.” The area was not “semiprivate,” such as a residential driveway (United States v. Magana (9th Cir. 1975) 512 F.2d 1169)2, and the truck, with wheels removed, was no more mobile than Wattenburg’s woodpile.
The device of seizing a legally-insignificant fact (a difference of some lineal feet) to “distinguish” Wattenburg cannot conceal the reality that the majority opinion has refused to follow Wattenburg. I cannot countenance that departure from stare deci-sis and from the discipline of the law of the Circuit.
Applying Wattenburg, I would require suppression of the evidence discovered during the search of the panel truck, and under Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441,1 would also require suppression of the evidence later seized from the station wagon and from the truck, all of which flowed from the initial illegal search.
II
The majority opinion holds that Basile waived his Miranda rights on proof that Miranda warnings were given and some time later Basile confessed. Its holding is contrary to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which states: “[A] valid waiver will not be presumed simply from the silence of the *1060accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (384 U.S. at 475, 86 S.Ct. at 1628.) The facts that Basile testified at trial, that he was intelligent, and that he did not contend that he did not understand the warnings do not distinguish this case from Miranda. The burden was not on Basile or Holden to prove non-waiver; the burden was on the Government to prove waiver.
The majority opinion does not address Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, which reaffirmed Miranda. In Mosley, unlike this case, the record was not silent on waiver. Mosley signed a waiver at his initial interrogation, then asserted his right to silence. After an interval of several hours and after renewed Miranda warnings, Mosley voluntarily responded to questioning by police officers. The Court held that the Government had carried its burden of proving waiver of the suspect’s right to silence. The record in our case supplies no basis to infer waiver of Basile’s Miranda rights.3
Ill
Basile’s confession exculpating Holden was hearsay because Holden sought to introduce the evidence for the purpose of proving the truth of Basile’s assertions. The question is whether the statements were nevertheless admissible as a statement against Basile’s penal interests. Under Evidence Code Rule 804(b)(3), the statement was admissible if corroborating circumstances indicated that the statements were trustworthy and if Basile was unavailable within the meaning of Evidence Code Rule 804(a)(1) and (2). The district court’s prior rulings had made Basile unavailable to Holden in the presentation of his case in chief. The district court did not specifically rule on the question whether Basile’s statements were adequately trustworthy, but the Government is not in the position to urge that they were untrustworthy since the Government sought to introduce them into evidence and eventually did so. Basile’s statements exonerating Holden are at least, arguably, statements against Basile’s penal interests, and the statements could have been deemed as trustworthy as the Government claimed his confession was. In absence of some opinion expressed by the district court and in absence of the Miranda problem, Holden should have been able to interrogate Ferguson about Basile’s statements against his penal interests as part of Holden’s own case in chief.
Assuming that Holden could thus move around the hearsay rule, he confronted another barrier to the admission of the testimony. As I have pointed out, a confession taken in violation of the Miranda rule could not be admitted against Basile for the purpose of proving the truth of the facts asserted, and the only reason Holden wanted the evidence was for precisely that purpose. This case thus presents the reverse side of the Bruton coin (Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476), because Basile’s statement could not be used to exculpate Holden without inculpating Basile. The only way to safeguard Holden’s right to introduce the exculpatory evidence and at the same time protect Basile from evidence inadmissible *1061against him under Miranda is to sever the trials of the two men.
The error was not cured by the opportunity that Holden later had to cross-examine Basile after he took the stand. The maximum that Holden could have realized from cross-examining Basile was a denial that Basile owned the marihuana, with an opportunity to impeach that portion of Basile’s testimony, and an admission that Basile had made exculpatory statements about him. The ability to bring out before the jury that Basile was a liar certainly did not cast Basile’s exculpatory statements about Holden in an attractive light. (Cf. Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297; United States v. Carter (5th Cir. 1974) 491 F.2d 625; United States v. Paquet (5th Cir. 1973) 484 F.2d 208.)
I would reverse.
. Janney, of course, is not controlling authority in this Circuit. Wattenburg did not distinguish Janney on the ground that the distance of the hog pen from the home in Janney was greater than the distance of the log pile from the house in Wattenburg. In Janney, the hog pen was searched to find a person who was reported to be committing a crime in the pen. Of greater moment, however, Wattenburg recognized that the open field doctrine applied in Janney was not viable after Katz.
. The majority’s reliance on Magana and United States v. Capps (9th Cir. 1970) 435 F.2d 637, is misplaced. In Magana, two officers were providing security for their fellow officers who had probable cause to arrest some narcotics traffickers. Upon the arresting officers’ signals, the covering officers drove into the driveway of a residence where they saw Magana standing in an open garage. Magana’s actions thereafter gave probable cause to arrest him. After the arrest, one of the officers went into an adjacent garage and saw heroin. We held that the officers had justification for being in the driveway and that the contraband was inadvertently discovered during a search that was lawfully incident to the arrest. Thus, the search and seizure in Magana was similar to that in Ker v. California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.
In Capps, officers had a warrant to search a Pontiac to obtain a red bag containing a machine gun. They did not discover the bag in the Pontiac, but they saw a red bag answering the description, on the back seat of an Oldsmobile that was parked in the same driveway. The Capps court distinguished Wattenburg v. United States, supra, 388 F.2d 853, on the ground that Wattenburg involved actions by officers who were not in possession of search warrants. (See 435 F.2d at 641^2 n.7.)
. The Government argues alternatively that even if the confession was obtained in violation of Miranda, the court did not err in permitting the Government to introduce Basile’s confession on rebuttal, because under Oregon v. Hass (1975) 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, and Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the confession was admissible for the purpose of impeaching Basile’s testimony about what he told the officers. A partial inconsistency between Basile’s testimony at the time of the trial and his confession, as attested by Officer Ferguson, existed because in his testimony Basile said that he told the officers at the time of his arrest that the marihuana was not his. Ferguson testified that Basile had admitted that the marihuana was his. Neither Hass nor Harris assists the Government in this case because, consistently with the court’s prior decision overruling Miranda objections, Basile’s confession was admitted to prove the truth of the facts asserted and not simply for impeachment purposes. The fact that Basile’s confession was not limited to impeachment is clear because the district court denied Basile’s request for a jury instruction that Ferguson’s testimony was to be considered solely for impeachment purposes.