IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40842

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LENNY SALINAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:11-CR-1167-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Lenny Salinas appeals his jury trial conviction on

one count of possession with intent to distribute in excess of 100 kilograms of

marijuana. He asserts that the district court erred in denying his motion to

suppress. Regarding an appeal of suppression issues, we review questions of law

de novo and questions of fact for clear error. United States v. Cooke, 674 F.3d

491, 493 (5th Cir. 2012).

United States Court of Appeals

Fifth Circuit

F I L E D

August 16, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40842

At the outset, we note that Salinas does not renew his challenge to the

validity of the affidavits supporting the search warrants. An issue must be

briefed to be preserved. FED. R. APP. P. 28(a)(9); United States. v. Charles, 469

F.3d 402, 408 (5th Cir. 2006). Salinas has therefore abandoned his challenge to

the validity of the affidavits by failing to brief the issue.

Salinas challenges the district court’s determination that the pickup truck

and the horse trailer, where the marijuana was found, were not within the

curtilage of the home at 2409 Alamo Street. He argues that law enforcement

agents, who had not yet obtained a search warrant, violated his Fourth

Amendment rights by entering the property without consent and conducting

canine sniffs of these vehicles, which were in an area visible from the street. 

Salinas also contends that the agents conducted an improper knock-and-talk

procedure when they ordered Laura Salinas (Laura) not to leave and proceeded

to enter the property without consent. He asserts that his inculpatory

statements were the product of violation of the Fourth Amendment right and

thus must be suppressed as fruit of the poisonous tree.

When deciding whether a particular area is within the curtilage of the

home, a court should look to the four factors set forth in United States v. Dunn,

480 U.S. 294, 301 (1987). These factors are applied to determine “whether the

area in question harbors the intimate activity associated with the sanctity of a

man’s home and the privacies of life such that the area is so intimately tied to

the home itself that it should be placed under the home’s umbrella of Fourth

Amendment protection.” Cooke, 674 F.3d at 494 (internal quotation marks and

citation omitted). 

Located approximately 15 feet from the home, the pickup truck and horse

trailer were close enough that Dunn’s proximity factor weighs in Salinas’s favor. 

However, as the area was not enclosed, was visible from the street, and was used

for parking vehicles and equine-related activities, which are not “intimately tied

to the home itself,” id., the remaining factors weigh in favor of a determination

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that the area in question was not curtilage, but rather was an open field. See

Dunn, 480 U.S. at 302-03; Mack v. City of Abilene, 461 F.3d 547, 554-55 (5th Cir.

2006). The district court did not reversibly err in determining that the area in

question was an open field, not curtilage. See Dunn, 480 U.S. at 304. 

The foregoing determination largely resolves the issues presented by this

appeal. “[O]nly the curtilage, not the neighboring open fields, warrants the

Fourth Amendment protections that attach to the home.” Oliver v. United

States, 466 U.S. 170, 180 (1984). “[T]here is no constitutional difference between

police observations conducted while in a public place and while standing in the

open fields.” Dunn, 480 U.S. at 304. 

We need only briefly address Salinas’s challenge to the knock-and-talk

procedure employed and the ensuing entry of the property. Salinas lacks

standing to assert a violation of Laura’s Fourth Amendment rights. See United

States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010); Club Retro, L.L.C. v. Hilton,

568 F.3d 181, 195 n.5 (5th Cir. 2009). Finally, law enforcement agents did not

violate the Fourth Amendment by entering the open field of the property

following the knock-and-talk encounter, even if they had not obtained consent. 

See Cooke, 674 F.3d at 495; Ehlers v. Bogue, 626 F.2d 1314, 1315 (5th Cir. 1980). 

AFFIRMED.

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