* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. ERIC PORTER, Defendant - Appellant. No. 97-8016 (D.C. No. 95-CR-099-J) (D. Wyo.)

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 un registered 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. Ou r jurisdiction arises under 28 U.S.C. § 1291 and we affirm.- 2 -

Based upon reports that Mr. Porter made threats with a sawed-off shotgun and rifle, several officers went to Mr. Porter’s re sidence to arrest him. Mr. Porter’s residence was a mobile home with a fence o n 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 10-1 2 feet away from the residence, but within the perimeter fence. The off icer behind the vehicle “happened to look down and saw an illegal firearm l aying 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 warran t 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 le gal 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 ligh t 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 wa s within the curtilage of the residence, was for his private use and had tint ed 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 resid ence for purposes of a search*** “We have held that outbuildings and vehicles withinthe curtilage of

a residence are considered part of that residence f or purposes of a search warrant, and have upheld searches of those buildings and veh icles even when not named in the warrant.” Finnigin , 113 F.2d at 1185. - 3 - warrant, see United States v. Finnigin , 113 F.3d 1182, 1185 (10th Cir. 1997), *** that does not confer an objectively reasonable expe ctation 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 t he roadway and was not enclosed by any type of structure. The district co urt found that the tinted windows were down. See Tr. 8/22/96 at 56. Thus, the officer could certa inly look in the vehicle without a search warrant. Mr. Porter also argues that no exigent circumstance s supported the seizure and that reliance upon the plain view doctrine is p retextual. Though the testimony conflicts on whether the officer merely n oticed the sawed-off shotgun while the car was open or conducted a search to fin d it, the district court credited the former account. This trumps much of Mr. Porter ’s argument. A warrantless plain view seizure will be upheld whe n the officer is properly in a position to observe and he discovers apparent contraband to which he has a- 4 -

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 andnoticed the sawed-off shotgun. The sawed-off shotgun was not only apparent contrab and, 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 gunin plain view), cert. denied , 487 U.S. 1238 (1988). For protection, the office r could seize it; he was not required to leave it unattended while a warrantwas obtained. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge