UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ORLANDO VASQUEZ, Defendant - Appellant. No. 22-1294 (D.C. No. 1:20-CR -00322-WJM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before EID , SEYMOUR , and KELLY , Circuit Judges.

________________ _________________ Defendant-Appellant Orlando Vasquez wa s convicted of being a felon in possession of a firearm, 18 U.S.C. § 922( g)(1), and was sentenced to 58 months’ imprisonment and three years’ s upervised release. 1 R. 131 –33. Pursuant to a plea agreement, Mr. Vasquez pled guilty, reserving the right to appeal from the denial of his motion to suppress. Id. at 87–88, 90. His motion sought to suppress evidence from a search and seizure that occurred in his front yard and driveway. Aplt. Br. at 1; 1 R. 76–84. On appeal, Mr. Vasquez argues that police officers violated his Fourth Amendment rights when they searched him within the curtilage of his home

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 3, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 12 without a warrant. Aplt. Br. at 6. We have jurisdiction und er 28 U.S.C. § 1291 and we affirm.

Background Officers observed a car with expired tags make a turn without coming to a complete stop at a red light. 1 R. 28–29, 63. Officers activated their lights for a traffic stop, but the car made another turn and passed six houses before it pulled into a shared driveway. Id. at 29. The car pulled into the l eft side of the driveway closest to a house on that side. The house is se parated from the street and sidewalk by a small front yard. Id. A pa ved walkway runs directly from the sidewalk to the front steps of the house, and a footpath runs fro m the front steps to the driveway on the right side of the house, with grass between the footpath and the porch and windows. Id.; Aplt. Br. at 2–3 (pictu re of house below; there was no shrub in front of the windows at the time of arrest).

The officers pulled in front of the house, and an officer crossed the front yard Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 23 and walked toward the driver side of the vehicle. 1 R. 29. The driver had his window rolled down. Id. The officer rec ognized the driver, Mr. Vasquez, as a gang member and was familiar with the reside nce and the neighbor ing residence as involved in recent gang-related shootings. Id. at 64. The officer explained the reason for the stop and asked for Mr. Vasquez’s licen se and registration. Id. at 30. The officer then asked Mr. Vasquez to step out of the vehicle to be patted down for weapons. Id. Mr. Vasquez initially shook his head no, at which point the officer ordered him from the car and grabbed his arm. Id. According to the officers, Mr. Vasquez resisted arrest and the officers took him to the ground in the front yard and handcuffed him. Id. at 30, 64. Mr. Vas quez told the officers he had a gun in his waistband. Id. at 31. The o fficers rolled him over and retr ieved a loaded firearm. Id.
at 65. Officers charged Mr. Vasqu ez and arrested him. 2 R. 5. Mr. Vasquez filed a motion to suppress, arguing th at the front yard and drivew ay were curtilage and that officers invaded it without a warrant or ex igent circumstances in violation of his Fourth Amendment rights. 1 R. 31–32. The district c ourt denied the motion without a hearing and concluded that th e driveway was not curtilage. 1 Id. at 76, 79–83.

Discussion “When reviewing a motion to suppress, we view the evidence in the light most

1 The district court did not address the fr ont yard in its curtilage analysis, 1 R. 76–84, despite that Mr. Vasquez argued the front yard was curtilage in his motion to Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 34 favorable to the government, accept the distri ct court’s findings of fact unless they are clearly erroneous, and re view de novo the ultimate question of reasonableness under the Fourth Amendment.” United St ates v. Pettit, 785 F.3d 1374, 1378–79 (10th Cir. 2015). The ultim ate determination of what constitutes curtilage is reviewed de novo. United States v. Cous ins, 455 F.3d 1116, 1121 (10th Cir. 2006). The issue is whether offi cers intruded upon the curt ilage of Mr. Vasquez’s home when they entered his front ya rd and driveway to search him. 2 Aplt. Br. at 1. Reviewing de novo, we conclude that neith er the shared driveway nor the portion of the front yard where officers searched Mr. Vasquez is curtilage. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and eff ects, against unreasonable se arches and seizures,” and this protection extends to curtilage, or “the area ‘immedi ately surrounding and associated with the home[.]’” Florida v. Jardines, 569 U. S. 1, 5–6 (2013) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). Fourth Amendment protection extends to curtilage because “privacy exp ectations are most he ightened” inside the home and in the “area intimately linked to the home, both physically and psychologically[.]” Ca lifornia v. Ciraolo, 4 76 U.S. 207, 213 (1986).

suppress, id. at 32–37. On appeal, Mr. Vas quez argues the district court erred by not addressing the front yard. Aplt. Br. at 17–20. We analyze both the front yard and the driveway in our curtilage analysis. 2 Given our disposition, it is unneces sary to decide the government’s alternative argument that Mr . Vazquez implicitly cons ented to the stop in his driveway by leading the office rs to his home and his conduct thereafter. Aplee. Br. at 9. Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 45 In United States v. Dunn, the Suprem e Court articulated four factors to determine whether an area is curtilage: (1) “the proximity of the area claimed to be curtilage to the home,” (2) “whether the area is incl uded 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 resi dent to protect the area from observation by people passing by.” 480 U.S. 294, 301 (1987). The Court emphasized that these factors are “useful analytical t ools” and not a “formula that [s hould be] mechanically applied” given that the main issue is whether the area is intimat ely connected to the home itself. Id. In Dunn, the Court concluded that a barn behind a ranch house was not curtilage. Id. In subse quent cases, the Court found th at certain areas in urban environments were curtilage — including a fr ont porch, Jardines, 569 U.S. at 7, and a fenced-in section of a driveway, Collins v. Virginia, 138 S. Ct. 1663, 1670–71 (2018) — without explicitly applying the Dunn factors. Here, the Dunn factors suggest that neither the yard nor drivew ay are curtilage. We previously applied Dunn to state that a front yard wa s not curtilage, Reeves v. Churchich, 484 F.3d 1244, 12 54–55 (10th Cir. 2007), and other circuits have held that shared driveways are not curtilage. See United Stat es v. Coleman, 923 F.3d 450, 456 (6th Cir. 2019); United States v. Jones, 893 F.3d 66, 72 (2d Cir. 2018). In this case, the government concedes the first factor — the yard’s proximity to the home — favors Mr. Vasquez. Aplee. Br. at 15. But the next three factors favor the government. Under the second and f ourth factors, the r ecord is clear that no enclosure surrounds either the yard or the driveway, nor are there any structures Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 56 attempting to block public visi bility of the yard or the dr iveway. See Aplt. Br. at 2–3 (photos of property). Under the third factor, no objective evidence (such as the presence of tables, lawn chairs , or a grill) might suggest th at the yard or driveway are used for “intimate act ivity associated with the ‘sanctity of a man’s home and the privacies of life.’” Dunn, 480 U.S. at 300, 302–03 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). We disagree with Mr. Vasqu ez that walking between the house and the driveway, in plain view of the street, constitutes activity intimately tied to the home. Aplt. Br. at 16. Mr. Vasquez argues that af ter Jardines and Collins, the Dunn factors are not applicable to urban environm ents (as opposed to rural envi ronments). Id. at 10–13, 15–17. Mr. Vasquez emphasizes that the Supreme Court found a front porch, Jardines, 569 U.S. at 7, and a partially enclosed section of a private driveway, Collins, 138 S. Ct. at 1670–71, to be curtil age even though both we re visible from the street, therefore rendering Dunn factor four inapposite. Aplt. Br. at 16–17. He argues that these two cases stand for the pr oposition that any area “outside the front window” is curtilage, id. at 6 (quoting Collin s, 138 S. Ct. at 1671), and that the last three Dunn factors either do not apply to urban residential ar eas or favor him. Id. at 17. Therefore, Mr. Vasquez c ontends that because officers were standing close to the front windows of his house when they search ed him, they intruded upon its curtilage. But neither case overrules Dunn — in fact, both Jardines and Collins are compatible with Dunn’s holding that the “centrally relevant consideration” in determining curtilage is “whether the area in question is so intimately tied to the Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 67 home itself that it should be placed unde r the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301; see Jardines, 569 U.S. at 6–7; Collins, 138 S. Ct. at 1671. Even accep ting Mr. Vasquez’s argument that rigid application of the Dunn factors may be less effective in urban areas, 3 the front yard and driveway here are not “so intimately tied to the home itself ” as to render them curtilage — unlike the front po rch in Jardines or the encl osed driveway in Collins. Dunn, 480 U.S. at 301. In fact, the areas in this case are materially dis tinguishable from Jardines and Collins. In Collins a portion of the driveway found to be curtilage was enclosed on three sides, located behind the front perimete r of the house, and contained a side door accessing the house and a vehicle covered with a tarp. 138 S. Ct. at 1668, 1670–71. Here, the driveway was not pr ivate but shared with resi dents of another house, no portion of the driveway was enclosed, and th e car was parked in front of the house’s perimeter. In Jardines, a front porch, the “classic exemplar” of cu rtilage given its natural demarcation and direct access to window s into the home, was extended Fourth

3 Mr. Vasquez cites United St ates v. Swepston, where we noted that “the Dunn factors are particularly usef ul in deciding the curtilage question” and mentioned an out-of-circuit case (United States v. Acos ta, 965 F.2d 1248, 1255–56 (3d Cir. 1992)) holding that the Dunn factors were not as useful in an urba n area. 987 F.2d 1510, 1514 (10th Cir. 1993), overruled in part on other grounds by Co usins, 455 F.3d at 1121 & n.4. But similarly, in that case our discussion of Du nn’s applicability remained centered on the “central question of whether the area [w as] so intimately tied to the home” that it warranted Fourth Amendment protection, regardless of whether the area was ur ban or rural. Id. Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 78 Amendment protection. 569 U.S. at 6–7. The yard here is different . First, as “easily understood from our daily e xperience[,]” a front porch im plicates different privacy interests than a front ya rd abutting the street unde r a commonsense “conception defining [] curtilage[.]” Id. at 7 (quoti ng Oliver, 466 U.S. at 182 n.12). Second, Jardines reinforces th at “boundaries of the curtilage ar e generally ‘clearly marked,’” such as with a porch. Id. In the yard at issue, a footpa th (between the steps and the driveway) divided the larger street-side portion of the yard from the smaller houseside portion of the yard abutting the windows — but the search at issue in this case occurred entirely on the street-side portion of the yard. See Body-camera footage, May 23, 2020. Even if the house-side porti on of the yard directly adjacent to the windows constituted curtilage (an issue we do not decide), the o fficers’ search and seizure on the street-side portion of the yard and the shared driveway did not trigger Fourth Amendment protections.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge Appellate Case: 22-1294 Document: 010110977595 Date Filed: 01/03/2024 Page: 8