                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 10, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellant,

 v.                                                    No. 13-4098
                                          (D.C. No. 2:11-CR-00384-DN-BCW-1)
 ARTURO MAGANA CHAVEZ,                                  (D. Utah)

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.



I.    Introduction

      Defendant-Appellee Arturo Chavez was charged in a federal indictment

with being a felon in possession of a firearm. Chavez sought to suppress the

firearm and other relevant evidence as fruit of an illegal search of the home in

which he was arrested. Applying the principles set out in Payton v. New York, the

district court concluded officers did not have a reasonable belief that Chavez



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
lived in the home or was present at the time officers entered the curtilage. 445

U.S. 573, 603 (1980). Accordingly, the court granted Chavez’s motion. The

Government then brought this appeal, challenging the district court’s ruling.

Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we affirm the district

court’s order granting Chavez’s suppression motion.

II.   Background

      Because the Government has disavowed any challenge to the district court’s

factual findings, our brief summary of the facts is taken directly from the district

court’s order.

      On April 27, 2011, Officer Brett Miller of the Taylorsville Police

Department met with a confidential informant (“CI”). The CI told Miller he was

“very familiar” with Chavez and knew there was a warrant for his arrest. He told

Miller that Chavez was a member of the “Diamond Street” gang and went by the

gang name “Wizard.” He also told Miller that Chavez had been living in a home

located at 154 West Westwood Avenue in Salt Lake City (the “Westwood

house”). The CI indicated the house was located on the north side of the street

and had a “For Sale” sign in the front yard. He said the property was owned by

one of Chavez’s family members but was vacant because it did not have running

water. After meeting with the CI, Miller confirmed the existence of an

outstanding arrest warrant for Chavez. The address in the warrant, however, was

not the address of the Westwood house.

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      Shortly after midnight, Miller drove to the Westwood house, which he

recognized by the “For Sale” sign in the yard. There was a car parked in the

driveway but no lights were on inside the house. As Miller was driving away, he

observed a vehicle arrive at the home and back into the driveway. Miller circled

back and saw a female exiting the passenger seat of the vehicle. He did not see

the driver, although the driver’s door was open. Miller ran the license plate and

learned the car was registered to Jenny Lopez. The address of the Westwood

house was the address on the registration. The background check Miller ran on

Lopez revealed she had “some documentation” 1 with a person named Christopher

Gonzales. Miller also determined that Christopher Gonzales had previously

resided in the Westwood house and was related to Chavez. He did not, however,

determine who owned the Westwood house or whether the owner was related to

Chavez.

      Miller arranged for members of a Joint Criminal Apprehension Team

(“JCAT”) to set up a containment area around the Westwood house. Detective

Levi Hughes took up a position at the rear of the house, passing through an open

gate in a fence that enclosed the backyard. Hughes looked into the interior of the

home by peering through a gap in the blinds. He observed Chavez retrieve a

handgun from under a sofa. JCAT officers repeatedly commanded Chavez to exit


      1
      When he testified at the suppression hearing, Miller did not explain what
he meant by “some documentation.”

                                        -3-
the home but he refused to comply. A search warrant was obtained from a state

judge and members of the Salt Lake City Police Department introduced tear gas

into the home. The female who Miller observed at the beginning of the stand-off

exited the home and told officers Chavez was inside and armed with a firearm.

Chavez eventually surrendered and was arrested. The home was searched and

officers located the firearm.

      Chavez was charged in a one-count indictment with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He moved to

suppress the evidence discovered during the search of the Westwood house,

arguing Detective Hughes violated the Fourth Amendment by breaching the

curtilage of the home without a warrant. See Oliver v. United States, 466 U.S.

170, 180 (1984) (“[T]he curtilage is the area to which extends the intimate

activity associated with the sanctity of a man’s home and the privacies of life and

therefore has been considered part of home itself for Fourth Amendment

purposes.” (quotation and citation omitted)). Chavez further argued the

outstanding arrest warrant did not justify the warrantless entry onto the property

because any belief officers had that he lived in the Westwood house and was

present on the night of the search was not reasonable. See Payton, 445 U.S. at

603 (“[A]n arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when there is

reason to believe the suspect is within.”).

                                          -4-
       The district court held an evidentiary hearing, at which Officer Miller

testified at length about the information he received from the CI and his

subsequent investigation, including his observations on the night of Chavez’s

arrest. After the hearing, the parties fully briefed the issue and presented

additional oral arguments to the district court. The court thereafter granted

Chavez’s motion, concluding police lacked a reasonable belief Chavez lived at the

Westwood house and lacked a reasonable belief he was present at the time they

entered the curtilage.

III.   Discussion

       When reviewing the grant of a motion to suppress, this court examines the

evidence in the light most favorable to the defendant and accepts the district

court’s factual findings unless they are clearly erroneous. 2 United States v.

Nielson, 415 F.3d 1195, 1198 (10th Cir. 2005). The determination of whether a

Fourth Amendment violation has occurred, however, is reviewed de novo. United

States v. Oliver, 363 F.3d 1061, 1065 (10th Cir. 2004).

       In United States v. Gay, this court interpreted Payton as creating a two-part

test to determine when officers are justified in entering a home based on an arrest

warrant. 240 F.3d 1222, 1226 (10th Cir. 2001). The “officers must have a

reasonable belief the arrestee (1) lived in the residence, and (2) is within the

       2
       The Government makes no argument that the district court’s factual
findings are clearly erroneous. Neither does it argue the backyard of the
Westwood house is not an area protected by the Fourth Amendment.

                                         -5-
residence at the time of entry.” Id. Here, the district court concluded neither

prong of the test was satisfied. It is unnecessary for this court to decide whether

the officers had a reasonable belief Chavez lived in the Westwood house, because,

even if they did, we conclude they did not have an objectively reasonable belief

he was present at the time they entered the curtilage.

      We have previously cautioned that “courts must be sensitive to common

sense factors indicating a resident’s presence.” Valdez v. McPheters, 172 F.3d

1220, 1226 (10th Cir. 1999) (quotation omitted). Officers are not required to

actually view the suspect, but the circumstances must give them a reasonable

belief the suspect is present in the home. Id. Relevant facts include, but are not

limited to, the presence of an automobile, the time of day, and the operation of

lights at night. Id.

      Here, officers entered the Westwood house after midnight. This is,

admittedly, a time when a person residing there could reasonably be expected to

be home. This circumstance, however, is insufficient on its own to create an

objectively reasonable belief and no other factor or circumstance supports the

Government’s position. There was no visible indication anyone was in the home

when Officer Miller first drove past. The property was dark, and the lack of

lighting undercuts, rather than supports, the Government’s position. Although

there was a car parked in the driveway, Miller did not determine to whom the car

was registered and there was no testimony the car was in operable condition.

                                         -6-
Further, the CI had not told Miller that Chavez stayed at the Westwood house on

particular days or during particular hours. Cf. Gay, 240 F.3d at 1225 (“Soon after

disclosing the location of Mr. Gay’s current residence, the informant accompanied

the officers to Pottinger Street, showed them the location of the house, pointed

out the duplex, and told the officers Mr. Gay was presently in his home.”

(emphasis added)).

      Officer Miller then observed a car arrive at the house. A check of the

vehicle, however, revealed it was registered to Jenny Lopez at the Westwood

address. Although there was visible activity in the home after the vehicle arrived,

that activity was consistent with Miller’s observation of the female passenger

exiting the vehicle. Miller did not see the driver and there is nothing in the

record to support a reasonable belief that Chavez was driving Lopez’s vehicle.

      Because officers did not have an objectively reasonable belief Chavez

could be found within the Westwood house at the time they entered the property,

their entry violated his rights under the Fourth Amendment. See Gay, 240 F.3d at

1226 (holding under the second prong of the Payton test, officers entering a

residence pursuant to an arrest warrant must have a reasonable belief the suspect

is in the residence at the time of entry). The Government does not argue on

appeal that Chavez has failed to show a factual nexus between the

unconstitutional search and the evidence he challenges or that the evidence is not

fruit of the poisonous tree. United States v. Nava-Ramirez, 210 F.3d 1128, 1131

                                         -7-
(10th Cir. 2000) (holding once a defendant establishes a violation of his Fourth

Amendment rights and “a factual nexus between the illegality and the challenged

evidence,” the Government must prove the evidence is not fruit of the poisonous

tree (quotation omitted)). Thus, the observations made by Detective Hughes

when he peered through the blinds into the Westwood house, and the fruits of

those observations, must be suppressed. As the district court noted, this includes

the firearm.

IV.   Conclusion

      The order of the district court granting Chavez’s motion to suppress is

affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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