## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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### m 00-51233

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### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### J AVIER 

### G OMEZ



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

December 20, 2001

Before JOLLY, SMITH, and BENAVIDES,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Javier Go mez challenges his conviction of

conspiracy, possession of marihuan a with intent to distribute, and maint aining a place for

the purposes of possession and distribution of

marihuana. We vacate and remand. I.

Customs agents received a tip that a rental

truck was park e d outside Gomez’s residence

in El Paso, Texas. The agents previously had

received information suggesting the house was

being used as a narcotics “stash house.”

When the agents arrived at Gomez’s house,

he refused them permi ssion to search inside

but consented to a search of the garage. When

asked about the truck parked in his driveway,

Gomez stated that it belon ged to hi s cousi n2

and that a person named “Ben” had the keys.

Sergeant Tom Holloway entered the backyard when he saw Angel Valenzuela, Gomez’s

cousin, who informed Hollo w ay that another

nearby man, Benjamin Lowe, had the keys to

the truck. Holloway advised Lowe that he was

a police officer conducting an in vestigation

and requested permission to search the truck.

Lowe consented and gave Holloway the keys.

The resulting search revealed that the back of

the truck contained seven cardboard b o xes 

### SS over 170 pounds 

### SS

of marihuana. The

agents also found marihuana and other potent ially incriminat ing evidence inside Gomez’s

house.

After the discovery of the marihu ana, the

officers a rrested Gomez, Valenzuela, and

Lowe. They advised Gomez of his M iranda

rights and began to question him. After telling

two contradi ctory sto ries, Gomez eventually

admitted that Valenzuela and Lowe had paid

him $200 f

o r permission to use his house to

“store the dope” for eventual sale. The truck

was d e termined to be a rental vehicle; the

rental agreement was signed by Lowe and

does not list Gomez as an authorized driver.

II.

The di st rict court suppressed all evidence

obtained in the search of the house but admitted the evid e nce found in the truck, holding

that Gomez lacked standing to challenge it s

admissibilit y. Gomez’s conviction was based

in large part on this evidence. On appeal, Gomez contends that the use of the evidence from

th e truck violated his Fourth Amendment

rights. He also avers that the use of co-defendant testimony against him at trial violated his

Sixth Amendment rights under the Confrontation Clause. III.

To establish standing to “contest the validity of a search under the Fourth Amendment,”

the defendant must prove t hat he has a “reasonable expectation of privacy.” U nited States

v. Cardoza-Hinojosa

, 140 F.3d 610, 614 (5th

Cir. 1996). In considering challenges to a

ruling on a motion to suppress , “we must

accept the district court’s findings of underlying facts unless clearly erroneous.” I d. at 613.

“Questi ons of law, however 

### S

S including wheth

er an expectation of privacy is reas o nable

under the circumstances

. . . 

### SS are reviewed de

novo, as is the district court’s ultimate determin a tion of Fourth Amendment reasonableness.” Id.

This case presents an issue of first impression: whether a homeowner has a reasonable

expectation of privacy in a vehicle owned and

operated by a third party but parked on t he

homeowner’s driveway. 1 We conclude that

Gomez had that expectation, but only because

t he evidence seized not only was in a truck

parked on his property

, but also was known to

him because it was the subject of the unlawful

enterprise in which

he took part. We do not

speculate on whether there would be standing

in any other situat io n in which these factors

were not present.

1 The only two federal courts to have addressed

the issue have concluded that a homeowner does

have such an expec tation. S ee United States ex

rel. Boyance v. Myers , 270 F. Supp. 734, 742

(E.D. Pa. 1967) (holdi ng that a defendant, “by

reason of his ownership of the premises, has standing to challenge the search of [a third party’s] . .

. automobile while it was in the [defendant’s]

. . . driveway”), rev’d on other grounds

, 398 F.2d 896

(3d Cir. 1968); United States v. Cost ner , 217 F.

Supp. 644, 646 (E.D. Tenn. 1963) (same). Neither

of these decisions provides substantial guidance,

and neither is binding on us.3

Whether t here is standing to contest the

va lidity of a search “depends on (1) whether

the defendant is able to establish an actual,

subjective expectation of privacy with respect

t o t he place being searched or items being

seized, and (2) whether that expectation of privacy is one which society would recognize as

reasonable.” U

nited States v. Kye Soo Lee

, 898 F.2d 1034, 1037-38 (5th Cir. 1990). Gomez had both a subjective and an objective expectation.

A.

There is n o real doubt that Gom ez had a

“subjective expectation of privacy with respect” to the truck parked in his driveway. I d.

at 1037. Otherwise, he hardly would have

been likely to a llo w Lowe and Valenzuela to

stash the marihuana there while the truck was

in his driveway. In any event, the government

does not claim that Gomez fails this prong of

the test.

B.

The difficult question is whether Gomez’s

expectation of

privacy in the truck “is one

which society would recognize as reasonable.”

Id. at 1037-38. “Fourth amendment rights are

individually held and cannot be asserted solely

by reference to a particular place.” United

States v. Vega , 221 F.3d 789, 797 (5th Cir.

2 000)

, cert. denied

, 531 U.S. 1155 (2001 )

. Nonetheless, the fact that the truck was on

Gomez’s property is undeniably relevant to the

question whether he had a reas o nable expectati on of privacy. 2 The “factors to be weighed include whether the defendant has a possessory int erest in the thing seized or the place

searched, whether he has the right to exclude

others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his

privacy and whether he was legitimately on the

premises.” U

nited States v. Haydel

, 649 F.2d

1152, 1155 (5th Cir. Unit A Jul. 19 81). No

o ne circumstance has a decisive “talismanic”

significance. Id.

The Haydel factors tilt in Gomez’s favor.

He had a strong possessory in terest i n “the

place searched,” id.

, which was the real property on which his house was located. He

plainly had the right to exclude others from the

premises, which he owned, and thereby t o

exclude others 

### SS

except possibly the renters of

the truck 

### S

S from the truck by excluding them

from the real property

. Although apparently it

was not Gomez who locked the truck, he had

a subjective expectation of pr ivacy in its

contents; he obviously knew of the 170

pounds of marihuana stored there and was

concerned that it not be discover ed. The

“normal precautions to maintain his privacy,”

id.

, included having the truck parked on his

property to protect that privacy. Finally, it is

undeniable that Gomez w as “legitimately on

the premises,” id. , of his own house.

Because of Gomez’s possessory interest in

the land, and particularly because he and his

associates had an overriding interest in privacy

2 See, e.g.

, Rakas v. Illinois

, 439 U.S. 128, 143

n.12 (1978) (noting that “ one who owns or lawfully possesses or controls property will in all

likelihood have a legitimate expectation of privacy

by virtue of h is right to exclude”); A lderman v.

(continued...) 2 (...continued)

United States

, 394 U.S. 165, 176-79 (1969)

(holding that homeowner’s property interest grants

him standing to object to electronic surveillance of

conversations in his home even if he was not a

party to the conversations).4

regardi ng t he marihuana in the truck, we

conclude, under the specific facts of this case,

that he did indeed have a reasonable expectation of privacy sufficient to create standing for

a Fourth Amendment challenge to the search

of the truck. 3 IV.

G o mez also challenges his conviction on

the ground that the district court allowed codefendant testimony to be used against him in

violation of the Sixth Amendment’s Confrontati on Clause, as explicated in Bruton v. United States

, 391 U.S. 123 (1968) , under which

a defendant’s right to confront witnesse s “is

violated when (1) several co-defendants are

tried joint ly, (2) one defendant’s extrajudicial

statement is used to implicate anothe r defendant i n the crime, and (3) the confessor does

not take the stand a nd is thus not subject to

cross-examination.” U

nited States v. Restreppo , 994 F.2d 173, 186 (5th Cir. 1993) (citing

Bruton

, 391 U.S. at 127). Gomez’s claim falls

short on the first prong of the test, because he

was tried separately. 4

The judgment of conviction is VACATED,

and this matter is REMANDED fo r further

proceedings. 5 3 Other circuits have go ne further and have

reco gnized standing by homeowners to challenge

searches of containers found on their premises but

owned by third parties. See United States v. Cassity

, 720 F.2d 451, 457 (6th Cir. 1983) (holding

that defendant had standing to challenge search of

container stored in his home that he did not own or

know the contents of), vacated on other grounds

, 468 U.S. 1212 (1984); United States v. Issacs

, 708

F.2d 1365, 1367-69 (9th Cir. 1983) (holding that

defendant had legitimate expectation of privacy in

contents of locked safe stored in his apartment but

owne d by third party who had the key); U nited

States v. Perez

, 700 F.2d 1232, 1236 (8th Cir.

1983) (holding that defe ndant could challenge

search of luggage belonging to overnight guests

staying in his house). Arguably to the contrary is

United States v. Garcia-Rosa

, 876 F.2d 209, 218-

219 (1st Cir. 1989) (holding that defendant had

standing to challenge seizure of a box found in his

house and owned by a third party, but not to

challenge the search of its contents), v acated on

other grounds sub nom. Rivera-Feliciano v

. United States , 498 U.S. 954 (1990).

We need not opine on the validity of t hese

conclusions, for Gomez told the police that he had

given Valenzuela an d Lowe permission to store

marihua na at his house; he therefore definitely

knew o f the contents of the truck. We need not,

and do not, e xpr ess a view on the expectation of

priv a cy in the other cited cases, in which the defendants did not know the contents of the searched

containers.

This case also is readily distinguishable from

Garcia-Rosa

. There, the court based its decision

on the fact that the defendant had “failed to assert”

(continued...) 3 (...continued)

any expectation of privacy in the content of the box

at his suppression

hearing. I

d. at 219. By contrast, Gomez asked the di strict court to suppress

“ [a]ll tangible evidence seized . . . in connection

with the search of the residence

. . . or in connection wi t h the investigation of this case.” Second,

the Garcia-Rosa defendant may not have known of

the contents of the box and in fact went “out of his

way to” minimize his connection to it. Id.

4 Se e United States v. Briscoe , 742 F.2d 842,

847 ( 5th Cir. 1984) (holding that “for B ruton to

apply,

. . . there must be a joint trial with co-defendants”).

5 We do not cons ider Gomez’s argument that

the search of the truck was “fruit of the poisonous

tree” of the illegal sea r ch of his house and backy ard. This issue was not raised in the district

c our t, and the outcome may depend on facts not

(continued...)5 5 (...continued)

fully developed in the suppression hearing. Nor do

we consider the question whether there was consent

to search. The government and Gomez are free to

raise these and other issues on remand, as appropriate.