FILED

United States Court of Appeals

Tenth Circuit

April 25, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 10-2226

MOSES EARNEST MAESTAS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 1:09-CR-02050-JEC-1)

Stephen D. Aarons, Aarons Law Firm PC, Santa Fe, New Mexico, for DefendantAppellant.

John C. Anderson, Assistant United States Attorney (Kenneth J. Gonzales, United

States Attorney, with him on the brief), Albuquerque, New Mexico, for PlaintiffAppellee.

Before MURPHY, HARTZ, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Moses Earnest Maestas appeals from the district

court’s denial of his motion to suppress evidence—specifically, forty-two grams
2

of methamphetamine and a handgun—seized from an enclosed garbage storage

area. Mr. Maestas argues that he had a reasonable expectation of privacy in the

place where the evidence was seized, and that the seizure therefore violated his

Fourth Amendment rights. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s denial of Mr. Maestas’s motion to suppress. 

BACKGROUND

On June 29, 2009, the Federal Bureau of Investigation and the

Albuquerque, New Mexico, police department arranged for an undercover officer

to make a controlled purchase of methamphetamine from Mr. Maestas. The law

enforcement officers expected the purchase to take place at a triplex residential

unit located at 13101 Mountain Road NE in Albuquerque, New Mexico. The

Mountain Road residence was rented by a man known as “Road Dog,” R., Vol.

III, at 8–9 (Suppression Mot. Hr’g Tr., dated Mar. 4, 2010), but Mr. Maestas had

spent a considerable amount of time there over the preceding three months.

The officers observed Mr. Maestas pull up in a maroon Nissan Maxima car

and enter the residence. Before entering the home, however, he “place[d] a black

firearm in the small of his back.” R., Vol. I, at 20 (Plea Agreement, filed Mar. 9,

2010). Once inside, Mr. Maestas “pulled out a ziplock bag that contained clear

crystalline substance and started running his fingers through the contents of the

ziplock bag.” Id. Mr. Maestas then realized that he needed scales to weigh the

drugs, so he gave his brother (who was present at the residence) forty dollars and
3

sent him out to purchase scales.

Shortly thereafter, Mr. Maestas received a phone call informing him that

law enforcement had the house surrounded. Mr. Maestas then took the ziplock

bag of methamphetamine and went out the back door. As he stepped out, “he

looked around,” reached “to the small of his back,” and walked toward the

enclosed garbage storage area adjacent to the residence. R., Vol. III, at 32. Mr.

Maestas disappeared momentarily inside the fenced-in area; during that time, the

observing officer “could not see him.” Id. Once he reemerged, Mr. Maestas

attempted to re-enter the residence, but the undercover officer had locked him

out. Mr. Maestas was then arrested. The officers subsequently searched the

enclosed garbage storage area and “discovered a black hand-gun placed near a

fence and behind a garbage can” and “a ziplock bag that contained the crystalline

type substance inside one of the garbage cans.” R., Vol. I, at 21. The bag

contained forty-two grams of methamphetamine. 

Mr. Maestas was charged with one count of distributing five grams or more

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), one

count of possessing with intent to distribute fifty grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one

count of carrying a firearm during and in relation to a drug-trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(a). Mr. Maestas moved to suppress the

methamphetamine and firearm recovered from the property; these items served as
1 The first count was based on a June 8, 2009, controlled transaction in

which Mr. Maestas sold an officer eighteen grams of methamphetamine. This

transaction and the resulting charge were not implicated by the motion to

suppress, and Mr. Maestas does not challenge his conviction on this count on

appeal.

4

the basis for the second and third counts.1

 Mr. Maestas argued that he had a

reasonable expectation of privacy in the enclosed garbage storage area because

(1) he was a guest in the home and, consequently, should be afforded the

protections of the Fourth Amendment, and (2) the Fourth Amendment protections

applicable to the residence extended to the enclosed garbage storage area, which

is within the curtilage of the home. The district court denied the motion, holding

that

Defendant Maestas failed in his burden to establish a privacy

interest in the dwelling and certainly not the exterior, common

garbage area where the physical evidence was located.

Accordingly, Maestas lacked a subjective expectation of privacy

necessary to challenge the search. . . . [E]ven if Maestas’

connection to the home had been less tenuous and he was the

type of overnight guest to which Fourth Amendment privacy

expectation has been assigned, the items were located i[n] an area

shared with other apartment residents where garbage is placed

outside for pickup. Surely Defendant Maestas has established no

legitimate, reasonable expectation of privacy in that area.

R., Vol. I, at 30 (Mem. Op. & Order Denying Def.’s Mot. to Suppress, filed

Apr. 5, 2010). 

Mr. Maestas pleaded guilty to all three counts, reserving his right to appeal

the district court’s denial of his motion to suppress. This timely appeal followed.
5

STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, “we consider the

totality of the circumstances and view the evidence in a light most favorable to

the government.” United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir. 2002)

(quoting United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir. 1999)) (internal

quotation marks omitted). The district court’s factual findings are reviewed for

clear error, and “the ultimate determination of reasonableness under the Fourth

Amendment is a question of law reviewable de novo.” Id. (same). “The burden

of proof is on the defendant to demonstrate that he has a reasonable expectation

of privacy in the place searched . . . .” United States v. Johnson, 584 F.3d 995,

998 (10th Cir. 2009).

DISCUSSION

The Fourth Amendment protects the “right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. A defendant invoking the protection of the

Fourth Amendment “must demonstrate that he personally has an expectation of

privacy in the place searched, and that his expectation is reasonable.” Minnesota

v. Carter, 525 U.S. 83, 88 (1998) (emphasis added); see also United States v. Poe,

556 F.3d 1113, 1121 (10th Cir. 2009) (“It is well-established that ‘the Fourth

Amendment is a personal right that must be invoked by an individual.’” (quoting

Carter, 525 U.S. at 88)). In order to meet this burden, “the defendant must show
6

that he had a subjective expectation of privacy in the premises searched and that

‘society is prepared to recognize that expectation as reasonable.’” Higgins, 282

F.3d at 1270 (quoting United States v. Conway, 73 F.3d 975, 979 (10th Cir.

1995)). 

Under the Fourth Amendment, it is axiomatic that people have a reasonable

expectation of privacy in their own homes. Griffin v. Wisconsin, 483 U.S. 868,

884 (1987). However, “in some circumstances a person may have a legitimate

expectation of privacy in the house of someone else.” Carter, 525 U.S. at 89. 

For example, in Minnesota v. Olson, the Supreme Court held that an overnight

guest has a reasonable expectation of privacy in the home of his host. 495 U.S.

91, 98 (1990). Extending this principle further, this court has “held that a social

guest who does not stay overnight has a reasonable expectation of privacy” in the

host’s property. Poe, 556 F.3d at 1122 (citing United States v. Rhiger, 315 F.3d

1283, 1286 (10th Cir. 2003)). In order for a social guest to qualify for protection

under the Fourth Amendment, there must be a “degree of acceptance into the

household,” Rhiger, 315 F.3d at 1286 (quoting Carter, 525 U.S. at 90) (internal

quotation marks omitted), or an “ongoing and meaningful connection to [the

host’s] home” establishing the person’s status as a social guest, id. at 1287.

On the other hand, “an individual does not possess an expectation of

privacy to challenge the search of another’s property when he or she is present

solely for commercial or business reasons” and otherwise has no meaningful
7

connection with the home. Id. at 1286 (citing Carter, 525 U.S. at 90–91). More

specifically, in Carter, the Supreme Court found no expectation of privacy when

the defendants were in the home for the sole purpose of packaging cocaine for

distribution—they were “not overnight guests, but were essentially present for a

business transaction and were only in the home a matter of hours,” and “[t]here

[wa]s no suggestion that they had a previous relationship with [the resident of the

home], or that there was any other purpose to their visit.” 525 U.S. at 90.

Initially, Mr. Maestas argues that his relationship with Road Dog and the

three-month period during which he frequented the residence “established a

‘meaningful connection’ to the apartment and an expectation of privacy there.” 

Aplt. Reply Br. at 3. Mr. Maestas testified that during the three-month period

preceding his arrest he was at the house “on a regular basis,” R., Vol. III, at 9,

that he frequently “stayed there overnight” when he was using drugs, id. at 10,

that he would “shower there” and “g[e]t cleaned up there,” id. at 12, that he

would spend time there “talk[ing] to [Road Dog] . . . about life,” id. at 16, and

that “Road Dog [did not] have any problem with the fact that [he] w[as] staying

the night there at his Mountain Road residence,” id. at 10. On the other hand, the

government argues that “the record is clear that on the day of his arrest, Maestas

was present at the Mountain Road apartment for no purpose other than to conduct

an illegal narcotics transaction,” and therefore he “had no reasonable expectation

of privacy in the Mountain Road apartment.” Aplee. Br. at 8. 
8

As stated above, the district court concluded that Mr. Maestas’s

“connection to the home had been [too] tenuous and he was [not] the type of

overnight guest to which Fourth Amendment privacy expectation has been

assigned.” R., Vol. I, at 30. Accordingly, the district court concluded that the

search did not violate the Fourth Amendment. We need not, however, definitively

decide this issue. In this instance, we assume without deciding that Mr. Maestas

was a social or overnight guest at Road Dog’s residence and that for Fourth

Amendment purposes his expectation of privacy was coterminous with the

expectation of privacy of the tenant, Road Dog. Under these assumptions, Mr.

Maestas had a reasonable expectation of privacy in the apartment. But that does

not necessarily resolve the issue of whether Mr. Maestas—standing in the shoes

of the tenant, Road Dog—had a reasonable expectation of privacy in the garbage

storage area adjacent to the triplex residence. That is the issue before us for

decision. 

Mr. Maestas argues that the garbage storage area is within the curtilage

protected by the Fourth Amendment, while the government argues that it is not. 

Under well-settled Fourth Amendment jurisprudence, the privacy expectation that

one has in the home generally extends to the “curtilage” of the home. See, e.g.,

Kyllo v. United States, 533 U.S. 27, 34 (2001); Oliver v. United States, 466 U.S.

170, 180 (1984); Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir. 2007). 

“Curtilage is the area to which extends the intimate activity associated with the
2 In Long, police officers “seized three garbage bags from atop a

trailer parked near [the defendant’s] garage.” 176 F.3d at 1306. On appeal, we

concluded that “the district court’s determination that the trailer was outside the

9

sanctity of a man’s home and the privacies of life.” Lundstrom v. Romero, 616

F.3d 1108, 1128 (10th Cir. 2010) (brackets omitted) (quoting Reeves, 484 F.3d at

1254) (internal quotation marks omitted). In determining whether an area around

a home is within the “curtilage,” the court generally considers four factors: “(1)

the area’s proximity to the home; (2) whether the area is included within an

enclosure surrounding the house; (3) the manner in which the area is used; and (4)

the steps the resident has taken to protect the area from observation.” Id. 

Regarding the first, second, and fourth factors, the evidence presented in

this case demonstrates that the garbage storage area at issue abuts one unit of the

triplex, is enclosed by a fence, and is largely shielded from observation. See R.,

Vol. III, at 17–18, 32 (stating that the area was “an enclosed area adjacent to the

residence,” surrounded by a “coyote fence,” and that the officer “could not see”

Mr. Maestas when he entered the area). However, as stated above, “curtilage” is

defined as “the area to which extends the intimate activity associated with the

sanctity of a man’s home and the privacies of life.” Lundstrom, 616 F.3d at 1128. 

Consequently, our observation that “it is difficult to imagine anyone using an area

in which garbage was regularly deposited for the intimate activities of the home”

is at least arguably relevant to our assessment of the third factor. United States v.

Long, 176 F.3d 1304, 1308 (10th Cir. 1999).2

 However, ultimately we need not
curtilage [was] not clearly erroneous.” Id. at 1308. In noteworthy respects,

however, the garbage area in Long differs from the one at issue here. In Long,

“no fence or other barrier enclosed the trailer,” and the defendant did not

“attempt[] in any way to shield [the trailer] from public view.” Id.

10

opine on whether the garbage storage area located outside Road Dog’s residence

is in fact within the curtilage. Even assuming, arguendo, that it is, Mr. Maestas

cannot demonstrate that he had a reasonable expectation of privacy in the area.

Road Dog lived in a multi-unit residential complex—namely, a triplex. 

Thus, the garbage storage area was not used exclusively by Road Dog and his

guests; to the contrary, it was used by at least two other tenants in the triplex (and

presumably their guests), and it was accessible by the landlord (and presumably

his or her agents). See R., Vol. III, at 14 (stating that the area contained “three

trash cans” that were used by the “three residents at the apartment complex”). 

The government argues that “[t]he communal nature of the garbage area defeats

any argument that Maestas maintained a legitimate expectation of privacy in that

space.” Aplee. Br. at 10–11. Although we have stated in dicta that “[a]partment

tenants who move personal items into a common hallway cannot reasonably

believe those items will be left uninspected,” United States v. Barrows, 481 F.3d

1246, 1249 (10th Cir. 2007), we have never definitively ruled on whether an

individual can have a reasonable expectation of privacy in the common or shared

areas of a multi-unit residential dwelling, see United States v. Martin, 613 F.3d

1295, 1299 & n.1 (10th Cir. 2010) (recognizing the “disagreement among our
11

sister courts about the Fourth Amendment status of apartment building common

areas,” but finding it “unnecessary to resolve whether [the defendant] possessed a

reasonable expectation of privacy in the apartment building’s atrium or

entryway”). 

In general, most circuit courts have found that “shared” or “common” areas

in apartment complexes or multi-unit dwellings, such as hallways, entryways, and

basements, are not areas over which an individual tenant can have a reasonable

expectation of privacy. See, e.g., United States v. Miravalles, 280 F.3d 1328,

1333 (11th Cir. 2002) (holding that “tenants in a large, high-rise apartment

building, the front door of which has an undependable lock that was inoperable on

the day in question, [do not] have a reasonable expectation of privacy in the

common areas of their building”); United States v. Nohara, 3 F.3d 1239, 1242

(9th Cir. 1993) (holding that a tenant in an apartment complex “has no reasonable

expectation of privacy in the common areas of the building”); United States v.

Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992) (holding that the defendant did not

have a reasonable expectation of privacy in the shared hallway or the backyard of

a three-story, multi-unit apartment building); United States v. Eisler, 567 F.2d

814, 816 (8th Cir. 1977) (holding that an apartment tenant does not have “a

reasonable expectation of privacy in the hallway of the apartment building”). The

general reasoning behind this conclusion, as the Eleventh Circuit explained in

Miravalles, is that apartment tenants 
3 But see United States v. Carriger, 541 F.2d 545, 549–50 (6th Cir.

1976) (holding that “a tenant in an apartment building has a reasonable

expectation of privacy in the common areas of the building not open to the

general public,” where the apartment building was locked and the officer gained

access to the common area “without permission” by entering the complex as

several workmen left the building). The Sixth Circuit has recognized that Carriger is

“outside of the mainstream” in finding a reasonable expectation of privacy in such

common areas and has declined to move further in this regard by broadly applying its

holding. United States v. Dillard, 438 F.3d 675, 683 (6th Cir. 2006); see Nohara, 3 F.3d

at 1242 (“[W]e join the First, Second, and Eighth Circuits which have rejected this

[Carriger] rationale and held an apartment dweller has no reasonable expectation of

privacy in the common areas of the building whether the officer trespasses or not”). 

12

have little control over those areas, which are available for the

use of other tenants, friends and visitors of other tenants, the

landlord, delivery people, repair workers, sales people, postal

carriers and the like. The reasonableness of a tenant’s privacy

expectation in the common areas of a multi-unit apartment

building stands in contrast to that of a homeowner regarding the

home and its surrounding area, over which the homeowner

exercises greater control. 

280 F.3d at 1332 (citations omitted).3

Most courts have found this reasoning applies even to multi-unit complexes

with a small number of units, such as duplexes. See, e.g., United States v.

McCaster, 193 F.3d 930, 933 (8th Cir. 1999) (holding that a tenant of a two-unit

complex had no reasonable expectation of privacy in the shared hall closet of the

dwelling, which was accessible by two other tenants and the landlord); United

States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985) (holding that the defendant

did not have a reasonable expectation of privacy in the entryway of a two-unit

dwelling); see also United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984)
4 But see United States v. Fluker, 543 F.2d 709, 716 (9th Cir. 1976)

(holding that the defendant had a reasonable expectation of privacy in the shared

hallway of a duplex, where the door to the hallway was “always locked and []

only the occupants of the two apartments and the landlord had keys thereto”);

Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir. 1974) (holding that the

defendant had a reasonable expectation of privacy in the shared backyard of a

four-unit complex).

13

(holding that the defendant had no Fourth Amendment right to privacy in the

basement of a four-apartment residence, which was accessible to all tenants and

the landlord, even though the officer “gained entry to the basement as an

uninvited person”).4

On the other hand, at least one court has recognized that under certain

unique circumstances a different result may be warranted—specifically, when all

the occupants of a multi-unit residential dwelling have a familial or other special

relationship with each other. In United States v. King, the Sixth Circuit held that

the defendant “had a reasonable expectation of privacy in the basement of the

two-family duplex where he resided,” when “he shared the downstairs unit with

his brother while his mother and siblings resided in the upstairs unit.” 227 F.3d

732, 748–50 (6th Cir. 2000). In other words, the defendant had a valid privacy

interest in the shared basement of the two-unit residential dwelling because,

among other things, the residents were all “family members.” Id. at 749; see also

United States v. Mendoza, 281 F.3d 712, 721 (8th Cir. 2002) (Bye, J., dissenting)

(disagreeing with the majority’s holding that the defendant did not have a Fourth

Amendment privacy interest in the vestibule of a duplex because, among other
14

reasons, “[t]he only two tenants of the duplex were boyfriend and girlfriend, and

thus they shared a common interest in excluding the public from the common

vestibule”).

Keeping these principles in mind, we need not establish any bright-line

rules that would generally define the Fourth Amendment’s reach over common or

shared areas of multi-unit residential dwellings. See United States v. Holt, 264

F.3d 1215, 1231 (10th Cir. 2001) (en banc) (per curiam) (“Because of ‘the

fact-specific nature of the reasonableness inquiry,’ the Supreme Court has

generally ‘eschewed bright-line rules’ in the Fourth Amendment context.”

(quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996))), abrogated on other grounds

as stated in United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007); see

also United States v. Villegas, 495 F.3d 761, 767 (7th Cir. 2007) (noting that the

inquiry “is necessarily fact dependent, and whether a legitimate expectation of

privacy exists in a particular place or thing must be determined on a case-by-case

basis” (citations omitted) (internal quotation marks omitted)). We conclude that

on the particular facts of this case Mr. Maestas has failed to demonstrate that he

had a subjective expectation of privacy in the garbage storage area which society

is willing to accept as being objectively reasonable. First, the fact that this was a

common area shared by all three tenants (and presumably their guests) and the

landlord (and presumably his or her agents) weighs against a conclusion that Mr.

Maestas had a reasonable expectation of privacy in the area. See, e.g., McCaster,
15

193 F.3d at 933 (finding no Fourth Amendment right to privacy in the hall closet

of a two-unit dwelling when “[t]he evidence showed that two other tenants, as

well as the landlord, had access to the closet”); McGrane, 746 F.2d at 634

(holding that the tenant did not have a reasonable expectation of privacy in the

common storage area of the complex, which was “accessible to all tenants and the

landlord”); see also Barrows, 481 F.3d at 1249 (“Apartment tenants who move

personal items into a common hallway cannot reasonably believe those items will

be left uninspected.”).

Second, Mr. Maestas has not demonstrated that Road Dog had any sort of

familial or other special relationship with the other tenants—as in King—that

might warrant a different result. See 227 F.3d at 748–50. Finally, the area in

question was located outside of the multi-unit complex and was used to store cans

of garbage. Cf. Long, 176 F.3d at 1308 (“[I]t is difficult to imagine anyone using

an area in which garbage was regularly deposited for the intimate activities of the

home.”). Under these specific facts, it cannot be said that Mr. Maestas had a

reasonable expectation of privacy in the shared garbage storage area of Road

Dog’s triplex. Accordingly, the district court did not err in denying the motion to

suppress.

CONCLUSION

Based on the foregoing, we AFFIRM the district court’s denial of Mr.

Maestas’s motion to suppress the methamphetamine and firearm.