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 was 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’ supervised 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* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent 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

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without a warrant. Aplt. Br. at 6. We have jurisdiction under 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 left side of the driveway closest 

to a house on that side. The house is separated from the street and sidewalk by a 

small front yard. Id. A paved walkway runs directly from the sidewalk to the front 

steps of the house, and a footpath runs from 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 (picture 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 

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and walked toward the driver side of the vehicle. 1 R. 29. The driver had his 

window rolled down. Id. The officer recognized the driver, Mr. Vasquez, as a gang 

member and was familiar with the residence and the neighboring 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 license 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. Vasquez told the officers he had a gun in his 

waistband. Id. at 31. The officers rolled him over and retrieved a loaded firearm. Id. 

at 65. 

 Officers charged Mr. Vasquez and arrested him. 2 R. 5. Mr. Vasquez filed a 

motion to suppress, arguing that the front yard and driveway were curtilage and that 

officers invaded it without a warrant or exigent circumstances in violation of his 

Fourth Amendment rights. 1 R. 31–32. The district court denied the motion without 

a hearing and concluded that the 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 front yard in its curtilage analysis, 1 R. 

76–84, despite that Mr. Vasquez argued the front yard was curtilage in his motion to 

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favorable to the government, accept the district court’s findings of fact unless they 

are clearly erroneous, and review de novo the ultimate question of reasonableness 

under the Fourth Amendment.” United States v. Pettit, 785 F.3d 1374, 1378–79 

(10th Cir. 2015). The ultimate determination of what constitutes curtilage is 

reviewed de novo. United States v. Cousins, 455 F.3d 1116, 1121 (10th Cir. 2006).

The issue is whether officers intruded upon the curtilage of Mr. Vasquez’s 

home when they entered his front yard and driveway to search him.2

 Aplt. Br. at 1. 

Reviewing de novo, we conclude that neither 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 effects, against unreasonable searches and seizures,” and 

this protection extends to curtilage, or “the area ‘immediately 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 expectations are most heightened” inside the 

home and in the “area intimately linked to the home, both physically and 

psychologically[.]” California v. Ciraolo, 476 U.S. 207, 213 (1986). 

suppress, id. at 32–37. On appeal, Mr. Vasquez 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 unnecessary to decide the government’s 

alternative argument that Mr. Vazquez implicitly consented to the stop in his 

driveway by leading the officers to his home and his conduct thereafter. Aplee. Br. at 

9. 

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In United States v. Dunn, the Supreme 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 included 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 observation by people 

passing by.” 480 U.S. 294, 301 (1987). The Court emphasized that these factors are 

“useful analytical tools” and not a “formula that [should be] mechanically applied” 

given that the main issue is whether the area is intimately connected to the home 

itself. Id. In Dunn, the Court concluded that a barn behind a ranch house was not 

curtilage. Id. In subsequent cases, the Court found that certain areas in urban 

environments were curtilage — including a front 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 driveway are curtilage. 

We previously applied Dunn to state that a front yard was not curtilage, Reeves v. 

Churchich, 484 F.3d 1244, 1254–55 (10th Cir. 2007), and other circuits have held 

that shared driveways are not curtilage. See United States 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 fourth factors, the record is clear that 

no enclosure surrounds either the yard or the driveway, nor are there any structures 

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attempting to block public visibility of the yard or the driveway. 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 that the yard or driveway are 

used for “intimate activity 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. Vasquez 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 after Jardines and Collins, the Dunn factors are not 

applicable to urban environments (as opposed to rural environments). 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 curtilage even though both were visible from the 

street, therefore rendering Dunn factor four inapposite. Aplt. Br. at 16–17. He 

argues that these two cases stand for the proposition that any area “outside the front 

window” is curtilage, id. at 6 (quoting Collins, 138 S. Ct. at 1671), and that the last 

three Dunn factors either do not apply to urban residential areas or favor him. Id. at 

17. Therefore, Mr. Vasquez contends that because officers were standing close to the 

front windows of his house when they searched 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 

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home itself that it should be placed under 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 accepting 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 porch in Jardines or the enclosed driveway in Collins. 

Dunn, 480 U.S. at 301. 

In fact, the areas in this case are materially distinguishable from Jardines and 

Collins. In Collins a portion of the driveway found to be curtilage was enclosed on 

three sides, located behind the front perimeter 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 private but shared with residents of another house, no 

portion of the driveway was enclosed, and the car was parked in front of the house’s 

perimeter. 

In Jardines, a front porch, the “classic exemplar” of curtilage given its natural 

demarcation and direct access to windows into the home, was extended Fourth 

3

 Mr. Vasquez cites United States v. Swepston, where we noted that “the Dunn 

factors are particularly useful in deciding the curtilage question” and mentioned an 

out-of-circuit case (United States v. Acosta, 965 F.2d 1248, 1255–56 (3d Cir. 1992)) 

holding that the Dunn factors were not as useful in an urban area. 987 F.2d 1510, 

1514 (10th Cir. 1993), overruled in part on other grounds by Cousins, 455 F.3d at 

1121 & n.4. But similarly, in that case our discussion of Dunn’s applicability 

remained centered on the “central question of whether the area [was] so intimately 

tied to the home” that it warranted Fourth Amendment protection, regardless of 

whether the area was urban or rural. Id. 

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Amendment protection. 569 U.S. at 6–7. The yard here is different. First, as “easily 

understood from our daily experience[,]” a front porch implicates different privacy 

interests than a front yard abutting the street under a commonsense “conception 

defining [] curtilage[.]” Id. at 7 (quoting Oliver, 466 U.S. at 182 n.12). Second, 

Jardines reinforces that “boundaries of the curtilage are generally ‘clearly marked,’” 

such as with a porch. Id. In the yard at issue, a footpath (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 portion of the yard directly adjacent to the 

windows constituted curtilage (an issue we do not decide), the officers’ 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 

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