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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-51233
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAVIER GOMEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
December 20, 2001
Before JOLLY, SMITH, and BENAVIDES,
I.
Circuit Judges.
Customs agents received a tip that a rental
truck was parked outside Gomez's residence
JERRY E. SMITH, Circuit Judge:
in El Paso, Texas. The agents previously had
received information suggesting the house was
Javier Gomez challenges his conviction of
being used as a narcotics "stash house."
conspiracy, possession of marihuana with in-
tent to distribute, and maintaining a place for
When the agents arrived at Gomez's house,
the purposes of possession and distribution of
he refused them permission to search inside
marihuana. We vacate and remand.
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

and that a person named "Ben" had the keys.
III.
Sergeant Tom Holloway entered the back-
To establish standing to "contest the valid-
yard when he saw Angel Valenzuela, Gomez's
ity of a search under the Fourth Amendment,"
cousin, who informed Holloway that another
the defendant must prove that he has a "rea-
nearby man, Benjamin Lowe, had the keys to
sonable expectation of privacy." United States
the truck. Holloway advised Lowe that he was
v. Cardoza-Hinojosa, 140 F.3d 610, 614 (5th
a police officer conducting an investigation
Cir. 1996). In considering challenges to a
and requested permission to search the truck.
ruling on a motion to suppress, "we must
Lowe consented and gave Holloway the keys.
accept the district court's findings of underly-
The resulting search revealed that the back of
ing facts unless clearly erroneous." Id. at 613.
the truck contained seven cardboard box-
"Questions of law, howeverSSincluding wheth-
esSSover 170 poundsSSof marihuana. The
er an expectation of privacy is reasonable
agents also found marihuana and other poten-
under the circumstances . . .SSare reviewed de
tially incriminating evidence inside Gomez's
novo, as is the district court's ultimate deter-
house.
mination of Fourth Amendment reasonable-
ness." Id.
After the discovery of the marihuana, the
officers arrested Gomez, Valenzuela, and
This case presents an issue of first impres-
Lowe. They advised Gomez of his Miranda
sion: whether a homeowner has a reasonable
rights and began to question him. After telling
expectation of privacy in a vehicle owned and
two contradictory stories, Gomez eventually
operated by a third party but parked on the
admitted that Valenzuela and Lowe had paid
homeowner's driveway.1 We conclude that
him $200 for permission to use his house to
Gomez had that expectation, but only because
"store the dope" for eventual sale. The truck
the evidence seized not only was in a truck
was determined to be a rental vehicle; the
parked on his property, but also was known to
rental agreement was signed by Lowe and
him because it was the subject of the unlawful
does not list Gomez as an authorized driver.
enterprise in which he took part. We do not
speculate on whether there would be standing
II.
in any other situation in which these factors
The district court suppressed all evidence
were not present.
obtained in the search of the house but admit-
ted the evidence found in the truck, holding
that Gomez lacked standing to challenge its
1 The only two federal courts to have addressed
admissibility. Gomez's conviction was based
the issue have concluded that a homeowner does
in large part on this evidence. On appeal, Go-
have such an expectation. See United States ex
mez contends that the use of the evidence from
rel. Boyance v. Myers, 270 F. Supp. 734, 742
the truck violated his Fourth Amendment
(E.D. Pa. 1967) (holding that a defendant, "by
reason of his ownership of the premises, has stand-
rights. He also avers that the use of co-defen-
ing to challenge the search of [a third party's] . . .
dant testimony against him at trial violated his
automobile while it was in the [defendant's] . . .
Sixth Amendment rights under the Confronta-
driveway"), rev'd on other grounds, 398 F.2d 896
tion Clause.
(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.
2

Whether there is standing to contest the
include whether the defendant has a posses-
validity of a search "depends on (1) whether
sory interest in the thing seized or the place
the defendant is able to establish an actual,
searched, whether he has the right to exclude
subjective expectation of privacy with respect
others from that place, whether he has exhib-
to the place being searched or items being
ited a subjective expectation that it would re-
seized, and (2) whether that expectation of pri-
main free from governmental invasion, wheth-
vacy is one which society would recognize as
er he took normal precautions to maintain his
reasonable." United States v. Kye Soo Lee,
privacy and whether he was legitimately on the
898 F.2d 1034, 1037-38 (5th Cir. 1990). Go-
premises." United States v. Haydel, 649 F.2d
mez had both a subjective and an objective ex-
1152, 1155 (5th Cir. Unit A Jul. 1981). No
pectation.
one circumstance has a decisive "talismanic"
significance. Id.
A.
There is no real doubt that Gomez had a
The Haydel factors tilt in Gomez's favor.
"subjective expectation of privacy with re-
He had a strong possessory interest in "the
spect" to the truck parked in his driveway. Id.
place searched," id., which was the real prop-
at 1037. Otherwise, he hardly would have
erty on which his house was located. He
been likely to allow Lowe and Valenzuela to
plainly had the right to exclude others from the
stash the marihuana there while the truck was
premises, which he owned, and thereby to
in his driveway. In any event, the government
exclude othersSSexcept possibly the renters of
does not claim that Gomez fails this prong of
the truckSSfrom the truck by excluding them
the test.
from the real property. Although apparently it
was not Gomez who locked the truck, he had
B.
a subjective expectation of privacy in its
The difficult question is whether Gomez's
contents; he obviously knew of the 170
expectation of privacy in the truck "is one
pounds of marihuana stored there and was
which society would recognize as reasonable."
concerned that it not be discovered. The
Id. at 1037-38. "Fourth amendment rights are
"normal precautions to maintain his privacy,"
individually held and cannot be asserted solely
id., included having the truck parked on his
by reference to a particular place." United
property to protect that privacy. Finally, it is
States v. Vega, 221 F.3d 789, 797 (5th Cir.
undeniable that Gomez was "legitimately on
2000), cert. denied, 531 U.S. 1155 (2001).
the premises," id., of his own house.
Nonetheless, the fact that the truck was on
Gomez's property is undeniably relevant to the
Because of Gomez's possessory interest in
question whether he had a reasonable expec-
the land, and particularly because he and his
tation of privacy.2 The "factors to be weighed
associates had an overriding interest in privacy
2See, e.g., Rakas v. Illinois, 439 U.S. 128, 143
2(...continued)
n.12 (1978) (noting that "one who owns or law-
United States, 394 U.S. 165, 176-79 (1969)
fully possesses or controls property will in all
(holding that homeowner's property interest grants
likelihood have a legitimate expectation of privacy
him standing to object to electronic surveillance of
by virtue of his right to exclude"); Alderman v.
conversations in his home even if he was not a
(continued...)
party to the conversations).
3

regarding the marihuana in the truck, we
IV.
conclude, under the specific facts of this case,
Gomez also challenges his conviction on
that he did indeed have a reasonable expecta-
the ground that the district court allowed co-
tion of privacy sufficient to create standing for
defendant testimony to be used against him in
a Fourth Amendment challenge to the search
violation of the Sixth Amendment's Confron-
of the truck.3
tation Clause, as explicated in Bruton v. Unit-
ed States, 391 U.S. 123 (1968), under which
a defendant's right to confront witnesses "is
3 Other circuits have gone further and have
violated when (1) several co-defendants are
recognized standing by homeowners to challenge
tried jointly, (2) one defendant's extrajudicial
searches of containers found on their premises but
statement is used to implicate another defen-
owned by third parties. See United States v. Cas-
dant in the crime, and (3) the confessor does
sity, 720 F.2d 451, 457 (6th Cir. 1983) (holding
not take the stand and is thus not subject to
that defendant had standing to challenge search of
cross-examination." United States v. Restrep-
container stored in his home that he did not own or
po, 994 F.2d 173, 186 (5th Cir. 1993) (citing
know the contents of), vacated on other grounds,
468 U.S. 1212 (1984); United States v. Issacs, 708
Bruton, 391 U.S. at 127). Gomez's claim falls
F.2d 1365, 1367-69 (9th Cir. 1983) (holding that
short on the first prong of the test, because he
defendant had legitimate expectation of privacy in
was tried separately.4
contents of locked safe stored in his apartment but
owned by third party who had the key); United
The judgment of conviction is VACATED,
States v. Perez, 700 F.2d 1232, 1236 (8th Cir.
and this matter is REMANDED for further
1983) (holding that defendant could challenge
proceedings.5
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-
3(...continued)
219 (1st Cir. 1989) (holding that defendant had
any expectation of privacy in the content of the box
standing to challenge seizure of a box found in his
at his suppression hearing. Id. at 219. By con-
house and owned by a third party, but not to
trast, Gomez asked the district court to suppress
challenge the search of its contents), vacated on
"[a]ll tangible evidence seized . . . in connection
other grounds sub nom. Rivera-Feliciano v.
with the search of the residence . . . or in connec-
United States, 498 U.S. 954 (1990).
tion with the investigation of this case." Second,
the Garcia-Rosa defendant may not have known of
We need not opine on the validity of these
the contents of the box and in fact went "out of his
conclusions, for Gomez told the police that he had
way to" minimize his connection to it. Id.
given Valenzuela and Lowe permission to store
marihuana at his house; he therefore definitely
4 See United States v. Briscoe, 742 F.2d 842,
knew of the contents of the truck. We need not,
847 (5th Cir. 1984) (holding that "for Bruton to
and do not, express a view on the expectation of
apply, . . . there must be a joint trial with co-defen-
privacy in the other cited cases, in which the de-
dants").
fendants did not know the contents of the searched
containers.
5 We do not consider Gomez's argument that
the search of the truck was "fruit of the poisonous
This case also is readily distinguishable from
tree" of the illegal search of his house and back-
Garcia-Rosa. There, the court based its decision
yard. This issue was not raised in the district
on the fact that the defendant had "failed to assert"
court, and the outcome may depend on facts not
(continued...)
(continued...)
4

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 appro-
priate.
5