                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 27, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-6295
          v.                                           W . D. Oklahoma
 DO NA LD PAUL BELL,                               (D.C. No. 04-CR-190-R)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y , and EBEL, Circuit Judges.


      Donald Paul Bell was convicted by a jury on two counts of being a felon in

possession of a firearm, and w as sentenced to 240 months’ imprisonment. On

appeal he contends that (1) police officers conducted an unlawful search of a

wooded area behind his trailer home; (2) there was insufficient evidence to

support the convictions; and (3) he was sentenced in violation of United States v.

Booker, 543 U.S. 220 (2005). W e have jurisdiction under 28 U.S.C. § 1291 and

affirm the judgment of the district court, holding that (1) M r. Bell had no



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
expectation of privacy in the wooded area behind his home, because it was not

included with the home’s curtilage; (2) the evidence supported the convictions;

and (3) the post-Booker sentencing did not violate Booker.

I.    B ACKGR OU N D

      On June 22, 2004, Oklahoma City police officer Aaron Harmon, acting on a

tip from a confidential source, went to 4801 South Berryman Road in Oklahoma

City looking for Dave H ammons, a federal fugitive. The property is on the west

side of Berryman Road. A portion of the property (“the enclosed area”) is largely

enclosed as follows: The north and south boundaries of the enclosed area are

defined by fences that extend from the street a bit more than 50 feet. On the east

side (the street side) is a trailer home. A fence abutting the trailer extends north

to the northern-boundary fence. Another fence abutting the trailer extends south a

few feet to the driveway, which is unobstructed and leads to the interior of the

property. There may have been a “No Trespassing” sign on this portion of fence,

but it is not clear from the record. A third fence extends from the south side of

the driveway to the southern-boundary fence. On the west side of the enclosed

area are two buildings. A fence extends north from the northern building to the

northern-boundary fence. There are small gaps between the two buildings and

between the southern building and a fence that extends south to the southern-

boundary fence. To the west of the enclosed area is a “wooded area.” R. Vol. 2

at 25. (See diagram.) At oral argument M r. Bell’s attorney suggested that there

                                         -2-
was an outer barbed-wire fence that enclosed both the enclosed area and the

wooded area. But no mention was made of this fence before the district court,

and it is not apparent from the record that such a fence exists.

                                 NO RTH




                                                               TRAILER HOM E

W OO DED AR EA

                                 Officers’ path             DRIVEW AY




      Officer Harmon and fellow officer Ed Grimes entered the property through

the driveway to look for M r. Hammons. There was no response to knocks on the

front and back doors of the trailer home. The officers then saw a light on in a

travel trailer parked in the wooded area. Officer Grimes went through the gap

between the fence and the southern building on the west side of the enclosed area

                                          -3-
and knocked on the door of the trailer. There was no response. He then knocked

on the door of a second travel trailer in the wooded area, but again no one

answered. As he w alked back tow ard the first travel trailer, he passed a third

trailer and noticed that the serial-number plate had been removed. The officers

wrote down the vehicle identification number (VIN) from another of the trailers

and also from a John Deere tractor in the wooded area. A check with the police

dispatcher revealed that the trailer and the tractor had been reported stolen.

      A search warrant was obtained for the trailer home on the property. The

search revealed two handguns and two rifles in the master bedroom. These

weapons were the basis for Count 1 of the indictment.

      During the search of the trailer home the officers found several items

indicating M r. Bell’s ownership of the premises. They included two bills to him

at the Berryman address from the O klahoma Electric Cooperative dated February

4 and M arch 30, 2004, and a similarly addressed statement from AT& T for the

period February 27 to M arch 26, 2004. Charles Barton, finance manager of the

Oklahoma Electric Cooperative, testified at trial that an account had been opened

for 4801 South Berryman Road on October 20, 2003, in the name of Don Bell,

and that a money order with M r. Bell’s name on it was purchased on August 10,

2004, to pay a bill. A car title issued on June 4, 2004, was also found. The car

was registered to M r. Bell at the same address.




                                         -4-
       Other trial witnesses also tied M r. Bell to the property and the firearms.

Ricky Ash, who agreed to cooperate after he was arrested on drug and firearms

charges, testified that he had been to the home at 4801 South Berryman Road on

many occasions. He said that M r. Bell lived at the house, that M r. Bell “was

there all the time,” and that he had seen firearms at the house, all of which

belonged to M r. Bell. R. Vol. 4 at 211. He added that M r. Bell “was with a

firearm all the time.” Id. at 212. Dave Hammons also testified that M r. Bell

lived at that address, and that he kept a firearm on him “all the time.” Id. at 267.

Both further testified that M r. Bell often traded drugs for firearms while at that

address, and that M r. Bell kept the home padlocked when no one was there;

neither had a key.

       In addition, M r. Hammons, who had been living in a travel trailer on the

property since the beginning of June, testified about events on the day of the

search. He and his wife w ere in the travel trailer on June 22 when they saw M r.

Bell and a woman who was staying with him run out of the trailer house and drive

off. Suspecting that something was wrong, M r. H ammons and his wife also fled.

He met with M r. Bell about an hour later and “that’s when he told me that the

police was coming out there and we needed to stay away from the house.” Id. at

269.

       Officer Harmon testified that he looked for M r. Bell for approximately

three months before finally locating and arresting him. During this time, on

                                          -5-
August 26, 2004, M r. Bell was stopped for a traffic violation by Officer David

Carroll of the Choctaw, Oklahoma Police Department. The driver’s license he

produced was in the name of W ayne Oran Lewis. M r. Bell consented to a search

of the vehicle. Officer Carroll testified at trial that on the front seat next to where

the driver would sit he found a “green army-style bag” that contained a pistol and

several other items. R. Vol. 3 at 104. “M r. Lewis” told Officer Carroll that the

bag and its contents were not his. At trial another officer identified M r. Bell as

the driver w ho was calling himself W ayne Lewis. The firearm found during this

traffic stop was the basis for Count 2 of the indictment.

II.   D ISC USSIO N

      A.     The Search

      M r. Bell contends that the officers conducted an illegal search on June 22,

2004, by checking the VINs on the trailer and tractor that were in the wooded

area. He asserts that once the officers attempting to execute the arrest warrant

had concluded that M r. Hammons was not there, their further investigation

violated the Fourth Amendment and tainted the search warrant for the home. W e

disagree. Because the wooded area was not within the curtilage of the home, the

Fourth Amendment provided no protection against the officers’ intrusion. See

Oliver v. United States, 466 U.S. 170, 178 (1984) (“[A]n individual may not

legitimately demand privacy for activities conducted out of doors in fields, except

in the area immediately surrounding the home.”); id. at 180 (“[O]nly the curtilage,

                                          -6-
not the neighboring open fields, warrants the Fourth Amendment protections that

attach to the home.”). W hen the area searched is outside the home’s curtilage, it

is irrelevant whether the officers have trespassed on the property. See id. at 182-

84 (presence of “No Trespassing” signs and common law of trespass do not

govern Fourth Amendment protection).

      “[U]ltimate curtilage conclusions are to be reviewed under a de novo

standard although we continue to review findings of historical facts for clear

error.” United States v. Tolase-Cousins, Nos. 04-2218 & 04-2264, slip. op. at 9

(10th Cir. July 26, 2006) (en banc). The “central component” of the curtilage

inquiry

      is whether the area harbors the intimate activity associated with the
      sanctity of a man’s home and the privacies of life. . . . [F]our factors
      [are] used to determine whether a particular area was within the
      curtilage of a house: (1) the proximity of the area to the house; (2)
      whether the area is included within an enclosure surrounding the
      home; (3) the nature of the use to which the area is put; and (4) the
      steps taken by the resident to protect the area from observation.

Id. at 10 (panel opinion) (internal quotation marks and citations omitted). W e

examine each factor in turn. First, the w ooded area w as not near the home. It

was beyond the western-boundary fence, which was approximately 50 feet west of

the trailer home. Second, the area was outside the enclosed area. See United

States v. Dunn, 480 U.S. 294, 302 (1987) (“[I]t is plain that the fence surrounding

the residence serves to demark a specific area of land immediately adjacent to the

house that is readily identifiable as part and parcel of the house.”); Oliver, 466

                                         -7-
U.S. at 182 n.12 (“[F]or most homes, the boundaries of the curtilage will be

clearly marked.”). Third, there was no evidence at the suppression hearing

regarding what the wooded area was used for. Its appearance indicated that it was

used to store vehicles and trailers, hardly a private activity associated with the

intimacy of a home. Although the officers’ observations indicated that someone

might have been staying in one of the small travel trailers, M r. Bell’s argument

was that the search was conducted within the curtilage of the trailer home, not

some other “home” on the premises. Indeed, his attorney made no argument

based on occupancy of the travel trailer. Fourth, the wooded area was readily

visible to persons on neighboring property. The only artificial obstruction to

one’s view was the fence between the wooded area and the enclosed area.

Considering all these factors, it is apparent that M r. Bell had no reasonable

expectation of privacy in the wooded area. W e hold that the wooded area was not

within the trailer home’s curtilage. Cf. Dunn, 480 U.S. 294 (barn that was 60

yards from the house, outside the main fence surrounding the house but within

another fence on the property, not used for private activities, and not protected

from observation, was not within the curtilage of the home). Hence, the officers’

intrusion did not violate the Fourth Amendment.

      B.     Sufficiency of the Evidence

      M r. Bell’s claims of insufficient evidence have no merit. W e review these

claim s de novo, “view ing the evidence and the reasonable inferences to be draw n

                                         -8-
therefrom in the light most favorable to the government,” and reversing the

conviction “only if no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Toles, 297

F.3d 959, 968 (10th Cir. 2002) (internal quotation marks omitted). “[W]e do not

question the jury’s credibility determinations or its conclusions about the weight

of the evidence.” United States v. Norman, 388 F.3d 1337, 1340 (10th Cir. 2004)

(internal quotation marks omitted).

      Both guilty verdicts were for violations of 18 U.S.C. § 922(g)(1). “[I]n

order to prove a violation of § 922(g)(1), the government must establish the

following elements beyond a reasonable doubt: (1) the defendant was previously

convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm

or amm unition; and (3) the possession was in or affecting interstate commerce.”

Id. For each verdict M r. Bell challenges only the second element. “‘Possession’

can be either actual or constructive under § 922(g)(1). Constructive possession

occurs when a person knowingly holds ownership, dominion or control over the

object and premises where it is found.” Id. (internal citation and quotation marks

omitted)

       As to Count 1, M r. Bell contends that there was insufficient evidence to

connect him to the firearms that were found inside the trailer home. But several

documents found in the trailer indicated his dominion over the premises. And

Ricky Ash and Dave Hammons testified that M r. Bell lived there, always had a

                                          -9-
firearm in his possession, and often traded drugs for firearms at that location.

Speaking of the master bedroom where the firearms were found, M r. Hammons

testified that M r. Bell “hardly ever let anybody in there by their self,” because

there was “[u]sually money in there or dope.” R. Vol. 4 at 258. Both M r. Ash

and M r. Hammons also testified that M r. Bell kept the home padlocked when no

one was there, and that neither had a key; and M r. Hammons testified that

M r. Bell was there immediately before the police arrived on June 22. This

evidence was more than sufficient to convict M r. Bell of possessing the firearms

found in the home.

      The evidence was also sufficient on Count 2. A firearm was found in a bag

on the bench seat next to where M r. Bell had been sitting. He denied ownership

of the contents of the bag, saying that he had just purchased the truck. But the

jury could easily have found his story improbable. There was no one else in the

truck, and M r. Bell presented the officers with a fake name and driver’s license.

Further, there was testimony that M r. Bell alw ays carried a firearm.

      C.     Sentence

      Finally, M r. Bell contends that at sentencing the court conducted a “mini-

trial of a substantive offense for the purpose of enhancing the sentence,” in

violation of Booker. Aplt. Br. at 37. But there was no Booker error. Booker held

that when a fact is used to increase a sentence mandatorily, the fact must be

admitted by the defendant or found by a jury beyond a reasonable doubt. 543

                                         -10-
U.S. at 224. M r. Bell’s sentencing occurred after Booker was decided, and the

district court clearly stated “that the guidelines are advisory and they’re not

mandatory.” R. Vol. 5 at 63. Accordingly, there was no requirement that

sentencing factors be found by a jury. See United States v. Dalton, 409 F.3d

1247, 1252 (10th Cir. 2005) (judicial fact-finding is unconstitutional after Booker

“only when it operates to increase a defendant’s sentence mandatorily.”).

M r. Bell raises no other challenges to his sentence.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -11-
