IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-51233

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAVIER GOMEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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December 20, 2001

Before JOLLY, SMITH, and BENAVIDES,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Javier Gomez challenges his conviction of

conspiracy, possession of marihuana with intent to distribute, and maintaining 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 parked 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 permission to search inside

but consented to a search of the garage. When

asked about the truck parked in his driveway,

Gomez stated that it belonged to his cousin
2

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

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

cousin, who informed Holloway that another

nearby man, Benjamin Lowe, had the keys to

the truck. Holloway advised Lowe that he was

a police officer conducting an investigation

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 boxesSSover 170 poundsSSof marihuana. The

agents also found marihuana and other potentially incriminating evidence inside Gomez’s

house.

After the discovery of the marihuana, the

officers arrested Gomez, Valenzuela, and

Lowe. They advised Gomez of his Miranda

rights and began to question him. After telling

two contradictory stories, Gomez eventually

admitted that Valenzuela and Lowe had paid

him $200 for permission to use his house to

“store the dope” for eventual sale. The truck

was determined to be a rental vehicle; the

rental agreement was signed by Lowe and

does not list Gomez as an authorized driver. 

II.

The district court suppressed all evidence

obtained in the search of the house but admitted the evidence found in the truck, holding

that Gomez lacked standing to challenge its

admissibility. Gomez’s conviction was based

in large part on this evidence. On appeal, Gomez contendsthat the use ofthe evidence from

the 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 that he has a “reasonable expectationofprivacy.” United 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.” Id. at 613.

“Questions of law, howeverSSincludingwhether an expectation of privacy is reasonable

under the circumstances. . .SSare reviewed de

novo, as is the district court’s ultimate determination 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 the

homeowner’s driveway.1 We conclude that

Gomez had that expectation, but only because

the 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 situation 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 expectation. See United States ex

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

(E.D. Pa. 1967) (holding 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. Costner, 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 there is standing to contest the

validity of a search “depends on (1) whether

the defendant is able to establish an actual,

subjective expectation of privacy with respect

to the place being searched or items being

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

reasonable.” United 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 no real doubt that Gomez had a

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

at 1037. Otherwise, he hardly would have

been likely to allow 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 societywould recognize asreasonable.”

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.

2000), cert. denied, 531 U.S. 1155 (2001).

Nonetheless, the fact that the truck was on

Gomez’s propertyis undeniablyrelevant to the

question whether he had a reasonable expectation of privacy.2 The “factors to be weighed

include whether the defendant has a possessory interest 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 waslegitimately on the

premises.” United States v. Haydel, 649 F.2d

1152, 1155 (5th Cir. Unit A Jul. 1981). No

one circumstance has a decisive “talismanic”

significance. Id.

The Haydel factors tilt in Gomez’s favor.

He had a strong possessory interest in “the

place searched,” id., which was the real property on which his house was located. He

plainly had the right to exclude othersfromthe

premises, which he owned, and thereby to

exclude othersSSexcept possibly the renters of

the truckSSfrom 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 privacy in its

contents; he obviously knew of the 170

pounds of marihuana stored there and was

concerned that it not be discovered. 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 was “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

2See, 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 his right to exclude”); Alderman v.

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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

regarding the 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.

Gomez 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 Confrontation Clause, as explicated in Bruton v. United States, 391 U.S. 123 (1968), under which

a defendant’s right to confront witnesses “is

violated when (1) several co-defendants are

tried jointly, (2) one defendant’s extrajudicial

statement is used to implicate another defendant in the crime, and (3) the confessor does

not take the stand and is thus not subject to

cross-examination.” United 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 for further

proceedings.5

3 Other circuits have gone further and have

recognized 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

owned by third party who had the key); United

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

1983) (holding that defendant 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), vacated on

other grounds sub nom. Rivera-Feliciano v.

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

We need not opine on the validity of these

conclusions, for Gomez told the police that he had

given Valenzuela and Lowe permission to store

marihuana at his house; he therefore definitely

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

and do not, express a view on the expectation of

privacy 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”

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any expectation of privacy in the content of the box

at his suppression hearing. Id. at 219. By contrast, Gomez asked the district court to suppress

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

with the search of the residence . . . or in connection with the investigation of this case.” Second,

theGarcia-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 See United States v. Briscoe, 742 F.2d 842,

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

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

5 We do not consider Gomez’s argument that

the search of the truck was “fruit of the poisonous

tree” of the illegal search of his house and backyard. This issue was not raised in the district

court, and the outcome may depend on facts not

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fully developed in the suppression hearing. Nor do

we consider thequestionwhether therewas consent

to search. The government and Gomez are free to

raise these and other issues on remand, as appropriate.